A man who secretly filmed men's genitalia in a Christchurch mall's bathroom had his application to appeal his conviction declined by the Court of Appeal yesterday.
Emilio Nicholas Exequiel Araneda Aranguiz, who is originally from Chile, was arrested in January 2018 after police caught him filming on his phone through a hole in a bathroom stall wall next to a urinal.
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Aranguiz was found guilty at a Christchurch District Court trial in December 2018 of willful damage for punching holes in the stall wall and a representative charge of making intimate visual recordings.
Mall security had called the police when they noticed the holes in the wall and observed the stall had been occupied for 50 minutes.
A police officer peered over an adjacent stall to see Aranguiz with his pants down and holding his phone. Police then arrested Aranguiz for willful damage to the stall wall.
Later, police searched his phone and found images of multiple people using the urinal. They acquired his phone password after telling Aranguiz he may be committing another offence if he refused to give it. Police also recovered a screwdriver used to make the holes in the stall wall.
Aranguiz applied to the Court of Appeal after the High Court in Christchurch ruled that both the officer looking over the adjacent stall wall and the search of the phone were illegal searches, but concluded that it would be wrong to exclude this evidence.
Justice Simon France of the Court of Appeal ruled that the high expectation of privacy in a toilet stall was diminished because of the circumstances.
"It was plain the cubicle was not being legitimately used. The evidence was of central importance, and the offending one of concern. Exclusion of the evidence would therefore be disproportionate."
Justice France declined the application to appeal as it did not involve a matter of public importance, nor was it a miscarriage of justice – the two prerequisites to accept an appeal application.
Those tests were not met, Justice France said.