Police relied on CCTV footage of the robbery from a neighbouring property and also from a petrol station some hours later.
Both captured Tamiefuna, an associate, and a blue Ford Falcon at the time of the robbery, clearly associated with the offenders.
Three days after the robbery, police stopped the Ford, driven by an unlicensed driver with “suspicious” property inside.
Tamiefuna was in the passenger seat and the other occupants all had convictions for property offending.
The car was impounded and police took photographs of Tamiefuna as the occupants were gathering their belongings on the roadside.
The High Court found that when doing so, police were not in the process of gathering evidence for alleged offending by Tamiefuna.
Police were however able to cross-reference Tamiefuna’s roadside photographs with footage taken during the robbery and at the petrol station to support their claim he committed the robbery.
Tamiefuna appealed against his conviction, saying the taking and retention of his photograph breached his right to be secure against search and seizure under section 21 of the Bill of Rights Act, and the photographs should not have been filed as evidence against him.
The Court of Appeal panel, consisting of President Mark Cooper and Justices Brendan Brown and David Goddard, found Tamiefuna did have a “reasonable expectation of privacy” in the circumstances.
He was compelled to leave the vehicle and his photo was taken on the basis that it “might be useful in the future”.
“The evidence was also real and important and led to Mr Tamiefuna’s conviction for a serious offence. Admission of the evidence in the circumstances was supported by the need for an effective and credible system of justice.”
The Court of Appeal granted Tamiefuna’s sentence appeal and set aside the non-parole order, saying his sentence was too severe given the minimum period of imprisonment effectively tripled his jail time.
He was not diagnosed with mental health issues but this was not decisive, the Court of Appeal found.
Mental health issues were influential in other cases where courts have found non-parole orders under the three-strikes regime to breach offenders’ rights.
“Tamiefuna came from a disadvantaged background, and his ability to access rehabilitative support would be hampered were the non-parole order to continue,” the summary said.
The police were not investigating the possibility he might have committed any particular offence at the time.
“While the intrusion on Mr Tamiefuna’s privacy was relatively modest, the decisive point was the factual setting - being one in which no attempt was made to show the photograph was taken in the context of an ongoing police inquiry, or retained for that or any other lawful purpose,” a summary of the judgment said.
The High Court was however correct to admit the photograph as evidence. Although the right to be secure against unreasonable search and seizure was important, the intrusion was not very serious, the Court of Appeal said.
“The police’s impropriety was not deliberate, reckless or done in bad faith - though a different conclusion might follow if the police continue to take photographs of persons in circumstances not properly authorised by law.”
