A man sent to prison after an “unlawful” photo was taken by a police officer, linking him to a robbery, has had the charge thrown out after a long fight and can now walk free.
Mahia Tamiefuna was convicted and sentenced to a term of imprisonment in 2021 after being charged in relation to an aggravated robbery in 2019.
Tamiefuna then appealed that conviction all the way up to the Supreme Court, who ruled the police photograph was unlawful and in breach of his rights, meaning the evidence had to be excluded.
The Supreme Court quashed the conviction and ordered a retrial.
On Wednesday, prosecutor Henry Steele told Justice Timothy Brewer the Crown would not be seeking a retrial as there was insufficient evidence to proceed.
Justice Brewer acquitted Tamiefuna allowing him to leave the dock.
Tameifuna’s legal team, Susan Gray and Emma Priest, told Stuff this decision highlights the important principles of privacy for New Zealanders and the limits on police powers when gathering intelligence on people who are doing nothing wrong.
In November 2019, a robbery took place at a home in West Auckland. The Crown case at the judge-alone trial was Tamiefuna and another person entered the property and demanded various items from the complainant and was struck by one of them.
After leaving the house with the complainant’s car keys, phone and digital camera, the two men drove away in separate cars. The Crown said Tamiefuna was in the complainant’s Hyundai Santa Fe.
CCTV footage captured the other man, but the man the Crown said was Tamiefuna had his face obscured by a cap. He was wearing a black cap, black and white Asics shoes, beige pants and grey gloves.
Some days later, Tamiefuna was a passenger in a blue Ford Falcon - the same car captured in a service station after the robbery.
At about 4.20am, a police officer conducted a random stop.
When asked, Tamiefuna and another passenger gave their names with the police officer then searching for them in police database.
Tamiefuna was photographed wearing a dark cap with a light-coloured mark, maroon vest, beige trousers and black and white Asics shoes.
At the Court of Appeal Gray argued that the photo had been taken in the course of an unlawful and unreasonable search.
“He had been targeted and treated like a potential criminal, in circumstances where the police had no reasonable cause to suspect that any offence had been or would be committed....This constituted a breach of Mr Tamiefuna’s ‘right to be let alone’,” Gray argued at the Court of Appeal.
The Court of Appeal found that the taking and keeping of the photos was not lawful.
“Our conclusion that the evidence was obtained as a result of an unreasonable search and seizure means that it was improperly obtained for the purpose of s30 of the Evidence Act,” the Court of Appeal said.
Despite the Court of Appeal being satisfied that the photograph should have been excluded at trial, they found there was no doubt the evidence was admissible and Tamiefuna was convicted accordingly.
Speaking on Wednesday, Gray and Priest said the Supreme Court held that an effective and credible justice system requires the police not to unlawfully search private citizens or to hold information about them on the national intelligence database.
“If the Courts let people be charged where the only evidence against them is unlawfully or unfairly obtained by the police, it would undermine our entire system of justice,” the lawyers said.
“Put another way, the question should be whether it is ok for the police to break the law in order to prosecute crime. The answer clearly, and correctly, is no,” Gray and Priest said.