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Chris The Lawyer
Chris The Lawyer, Lawyer
Category: New Zealand Law
Satisfied Customers: 22898
Experience:  38 years qualified as a lawyer; LLB, MMgt and FAMINZ.
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My question is about whether the police have the right or

Customer Question

Hi Chris,
My question is about whether the police have the right or ability to obtain a court order to destroy or delete specific data on my phone, which is currently held as an exhibit in charges against me. And what I can do to prevent this from happening.
To fully explain this let me provide some context:
I have been in a relationship with a woman who has been engaging in illegal activities, namely tax evasion and immigration fraud. This relationship has recently come to an acrimonious end. This has had three consequences as detailed below.
Firstly, when we broke up I sent some offensive text messages to my ex-partner including one that called her a “dirty slut whore” – not one of my proudest moments. I have subsequently been charged with misuse of a telephone, plead guilty and I am to be sentenced on 25 November. I am hoping to obtain a discharge without conviction. When initially arrested my phone was taken by the police and is now held as an exhibit in my case. To exacerbate this issue I have broken one of my bail conditions, “not to contact, directly or indirectly, the victim” and subsequently spent a night in a police cell before being bailed again. The nature of this contact was a non-abusive, non-threatening, apologetic and one-off text message.
Secondly, our relationship ended with my ex-partner owing me approx. $3k. We planned an overseas trip, I paid for it by credit card and she agreed to pay me half the cost. We separated before she paid me back. The agreement to pay half the cost is well documented in What’s-app messages which are on my telephone that is held by the police. I have filed a dispute with the Disputes Tribunal and obviously it would be really useful to have these messages as evidence for my hearing.
Thirdly, I reported my ex-partner to both Immigration and the IRD and stated that they would like to obtain information I have on my telephone to assist in their investigations. Without going into specifics, it is likely that if they are to obtain this information then charges will be laid against my ex-partner. To be honest I wasn’t going to bother about this but after having spent a night in Police custody for saying ‘sorry’ my thinking is now different.
My lawyer asked for my phone to be returned to me on Friday, following my guilty plea. When arrested on Friday evening I asked the police officer if they were going to comply with this request. He advised me that they were not and that their intention was to seek a court order to destroy all information on my phone that relates to my ex-partner including text messages, photos, contact details etc. prior to giving my phone back after my sentencing. The justification given was that it would provide us both an opportunity to ‘move on’. This is very interesting because I know for a fact that the officer involved both knows my intentions and has read through the details on my phone – in effect he is trying to protect my ex-partner from being arrested and prosecuted on some serious charges by destroying the evidence.
So, to my question – Do the police have the ability to obtain a court order to destroy or delete information on my phone and what can I do to prevent this from happening?
Thanks.
Submitted: 1 year ago.
Category: New Zealand Law
Customer: replied 1 year ago.
Sorry, I miss typed a section..."I reported my ex-partner to both Immigration and the IRD and stated that they would like to obtain information I have on my telephone"Should read:I reported my ex-partner to both Immigration and the IRD. They both have stated that they would like to obtain information I have on my telephone"
Expert:  Chris The Lawyer replied 1 year ago.

You have the right to be heard on the issue of destruction of the phone and the phone records. If you have a lawyer instructed on the discharge, you need to instruct them to make a formal application to preserve the phone and the records on the phone, because of the need to preserve the records. If you make a case for the need to protect evidence, then the judge can refuse the police application.

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