New Zealand Police v Farrell [2017] NZDC 25561

Published 12 July 2018

Admissibility of evidence — surveillance camera evidence — camera on public land — trespass surveillance — improperly obtained evidence — Search and Surveillance Act 2012, ss 3 & 45 — Evidence Act 2006, s 30 — Hamed v R [2012] 2 NZLR 305. The police asked to have video surveillance evidence admitted against the defendant who was facing a charge of intentional damage. The evidence was taken on a camera that had been secured on a tree that was believed by the two individuals who placed the camera, to be sited on public land. Both individuals believed that they had crossed private land without obtaining permission in order to reach the tree that the camera was attached to. The camera was affixed by a caretaker, and supervised by an off duty police Sergeant. The defendant argued that the evidence was excluded by virtue of section 45 of the Search and Surveillance Act. The court was not satisfied that the land that was crossed was private land and that there was no trespass committed by either individual in securing the camera to the tree. The court further found that there could be no reasonable expectation of privacy as the camera was on public land and capturing only what could be seen with the naked eye on public land. The activity of securing the camera or capturing the footage was also found to be undertaken by a private citizen and not by the New Zealand Police. The evidence was found not to be trespass surveillance and was found to be admissible. Judgment Date: 14 November 2017.