Seizure of cellphones by police — admissibility of evidence — McLean v R [2015] NZCA 101 — Search and Surveillance Act 2012, ss 72(b)(i), 88 — Evidence Act 2006, s 30. The defendant faced charges of aggravated robbery and threatening to kill. These pre-trial proceedings were to determine if text messages on the defendant's cellphone were admissible as evidence. The police had taken the defendant's cellphones when he was initially taken into custody, and then seized the cellphones on the belief that they contained evidence relating to the aggravated robbery. In carrying out the seizure the police cited s 88 of the Search and Surveillance Act (SSA). The police later searched the phones for information, and then applied for a production order for information from the cellphone provider. The Crown alleged that the evidence obtained showed the defendant planning the robbery with another person. The Crown accepted that the police had not followed proper procedure, as the defendant did not have possession of the phones when s 88 of the SSA was invoked. Therefore the police had no authority to search the phones for evidence later, or to obtain a production order. But the Crown argued that the evidence was admissible via s 30 of the Evidence Act 2006, which provides a balancing exercise to allow improperly-obtained evidence. The Crown submitted that the texts were highly relevant to a key issue at trial — whether the defendant had the intention to commit robbery. Further the police had acted in good faith and their procedural errors were not serious. The defence argued that the police procedure had violated the defendant's reasonable expectation of privacy, and that the police should have used legitimate investigatory techniques, such as applying for a search warrant. The court examined the various factors provided by s 30 of the Evidence Act for deciding whether to allow evidence. Referring to the Court of Appeal judgment in R v McLean, the court found that the police had committed a serious breach of the defendant's right to privacy. While the police had acted in good faith, they were negligent in not knowing enough about search and seizure laws. Had they acted in accordance with the law they could have obtained the evidence properly via a search warrant. The court found that the text messages were inadmissible as evidence and not to be led at trial. Judgment Date: 2 March 2018.