Wiping of phone ‘idiotic', judge says

Otago Daily Times

6 hours ago

A Wānaka woman committed an "act of unpardonable folly" by wiping the contents of her phone while under suspicion of importing psilocybin, a judge says.
However, Judge Raoul Neave granted Skye Marie Spencer, 33, a discharge without conviction in the Queenstown District Court this week on the grounds a conviction would have a disproportionate impact on her employment and immigration status.
Police executed a search warrant at Spencer's home last year after suspecting her of importing the class A drug, a psychedelic drug also known as magic mushrooms.
Her refusal to provide access to her cellphone meant the officer in charge was unable to put it in flight mode, which would have protected its contents.
Although he placed the device in a Faraday bag to block electromagnetic interference, it underwent a "remote wipe" as soon as he removed it from the bag at Wānaka police station, Judge Neave said.
The defendant, who used her laptop to wipe the phone immediately after the search, later told police she had personal material on the device she did not want them to see.
She later admitted a charge of attempting to obstruct the course of justice, entering the plea after ESR analysis found the substance she had imported was not psilocybin.
Judge Neave said the Crown's position was she had intended to destroy evidence of her attempt to import the drug, and police were unable to retrieve the deleted material.
That was at odds with the submissions of defence counsel Paige Noorland, who said police were able to complete a full investigation, and retrieved at least some of the data.
Ms Noorland said Spencer's wiping of her phone may have been deliberate, but was also "naive, fleeting and opportunistic".
Judge Neave said the defendant claimed her actions were unrelated to the drug allegation, and motivated by a wish to keep material of an "intimate, personal nature" from the prying eyes of the police.
"Assuming that were true for the moment, whilst understandable, she had rather forfeited the right to those sorts of decisions when she was so stupid as to start to import a Class A drug," he said.
Despite her claim that she did not realise the seriousness of importing psilocybin, it must have been "blindingly obvious" that wiping her phone after receiving a search warrant was a criminal act.
There was irony in the fact she may not have appeared in court at all but for her "idiotic actions on the spur of the moment".
Turning to the discharge application, Judge Neave said the defendant had two long-standing jobs that required her to travel overseas, especially to the United States.
Although her employers remained supportive, a conviction would make that travel more difficult, and put her current and future employment at risk.
Because she was an Australian national, it would also make her eligible for deportation.
Losing her immigration status would jeopardise her relationship with her partner, who was a New Zealand citizen.
She had no previous convictions, and otherwise appeared to be a "responsible, hard-working and well-regarded young woman".
For those reasons, he decided the consequences of a conviction outweighed the seriousness of her offending and granted the discharge.
[e-mail]