S v The Queen

NOTE: DISTRICT COURT INTERIM ORDER PROHIBITING PUBLICATION OF THE APPLICANT'S NAME OR IDENTIFYING PARTICULARS REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

SC 119/2016
[2016] NZSC 172

BETWEEN	S (SC 119/2016) Applicant
AND	THE QUEEN Respondent

Court:	Arnold, OʼRegan and Ellen France JJ
Counsel:	S J Bonnar QC and C S Fredric for Applicant C J Hurd for Respondent
Judgment:	22 December 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted on six counts of importing a Class B controlled drug. The evidence against him consisted almost entirely of information obtained from two mobile phones seized by Customs officers at the border, using the power conferred by s 151 of the Customs and Excise Act 1996 (1996 Act).
After the mobile phones were seized, a Customs officer read through text messages and contacts on the phones and found text messages referring to a package being sent to the applicant’s address, for which the applicant had paid $55,000. The applicant was then interviewed and subsequently arrested.
The mobile phones were then delivered to a forensic investigator for further examination. Evidence obtained from a forensic examination of the mobile phones indicated that the applicant was involved in a pseudoephedrine importing syndicate. The mobile phones were seized using the power conferred by s 175D of the 1996 Act.
The applicant challenged the admissibility of the evidence from the mobile phones before his trial, but was unsuccessful. After he was convicted, he appealed against conviction to the Court of Appeal. One of the grounds of appeal was that the evidence obtained from the mobile phones was unlawfully obtained and that the evidence derived from the forensic examination of the mobile phones should not have been admitted at his trial. The Court of Appeal dismissed his appeal.[1]
[1]S (CA712/2015) v R [2016] NZCA 448 (Randerson, Woodhouse and Wylie JJ).
The applicant seeks leave to appeal against that aspect of the decision of the Court of Appeal. He argues that the challenge he wishes to make to the interpretation of ss 151 and 175D of the 1996 Act involves points of public importance. He says there is an arguable case that the Court of Appeal erred in its conclusion that s 151 and/or s 175D of the 1996 Act authorised the Customs officers to carry out the initial examination of the mobile phones and the later forensic examination.
The arguments that the applicant seeks to raise were carefully considered by the Court of Appeal. The Court rejected them.[2] It also expressed the view that, even if the initial examination and later forensic examination were unlawfully conducted, it would still have found the evidence was admissible applying the balancing test under s 30 of the Evidence Act 2006.[3]
[2]At [46].
[3]At [48]–[49].
While we accept that the power of Customs officers to seize and examine mobile phones may involve issues of some significance, we do not consider that the present case is an appropriate vehicle for these issues to be considered by this Court. We note that a Bill to replace the 1996 Act is currently before Parliament.[4] If passed, it would change the provisions in issue in this case. The significance of the points the applicant wishes to raise may therefore be limited. In addition, the arguments the applicant wishes to pursue on appeal do not appear compelling. Even if we were to accept them, we would also need to take a different view on the balancing test under s 30 of the Evidence Act than that taken by the Court of Appeal for the appeal to succeed.
[4]Customs and Excise Bill 2016 (209).
We are not satisfied the proposed appeal raises matters of sufficient public importance to justify a further appeal. Nor do we consider there is any likelihood of a miscarriage of justice occurring if leave is declined.
As the criteria for leave to appeal in s 13 of the Supreme Court Act 2003 are not met, we dismiss the application for leave to appeal.

Solicitors:
McVeagh Fleming, Auckland for Applicant
Crown Law Office, Wellington for Respondent

The Supreme Court of New Zealand considered an application for leave to appeal from S against The Queen. The applicant, S, had been convicted on six counts of importing a Class B controlled drug. The evidence against him primarily comprised information extracted from two mobile phones seized by Customs officers at the border. The applicant contested the admissibility of this evidence, arguing it was unlawfully obtained, but his challenge was rejected both before and after his trial. The Court of Appeal dismissed his appeal, including the challenge to the legality of the evidence obtained from the mobile phones.

The primary legal issue before the Supreme Court was whether the Court of Appeal erred in its interpretation of sections 151 and 175D of the Customs and Excise Act 1996, which authorised Customs officers to conduct initial examinations and later forensic examinations of the mobile phones. The applicant contended that these sections did not permit such examinations and that the evidence derived from them should not have been admitted at trial. The Court of Appeal had rejected this argument, concluding that even if the examinations were unlawful, the evidence would still be admissible under the balancing test in section 30 of the Evidence Act 2006.

The Supreme Court found that while the power of Customs officers to examine mobile phones involved issues of significance, the present case was not an appropriate vehicle for the Court to address these issues. The Court noted that a Bill to replace the 1996 Act was before Parliament, which would alter the provisions in question. Furthermore, the Court was not persuaded that the applicant’s arguments were compelling, and even if they were accepted, it would require a different view on the balancing test under section 30 of the Evidence Act for the appeal to succeed. Consequently, the Supreme Court dismissed the application for leave to appeal, as it did not meet the criteria for public importance or likelihood of a miscarriage of justice under section 13 of the Supreme Court Act 2003.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established