R v Barber [2007] NZCA 239 (13 June 2007)

Last Updated: 16 February 2014

ORDER NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA458/06 [2007] NZCA 239

THE QUEEN

v

_{IAN JOHN BARBER}

Hearing: 23 May 2007

Court: Wilson, Williams and Rodney Hansen JJ Judgment: 13 June 2007 at 11 am

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted, but the appeal is dismissed.

2. Order not to be published in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law report

_{or law digest permitted.}

REASONS OF THE COURT

_{(Given by Williams J)}

R V IAN JOHN BARBER CA CA458/06 13 June 2007

Issue

[1] The appellant faces trial in the District Court on 18 charges under the Customs and Excise Act 1996 s 54 of being knowingly concerned in the importation of prohibited goods, namely electronic publications that are objectionable under the Films, Videos, and Publications Classification Act 1993.

[2] On 8 November 2006 Judge Field ruled the evidence of a Mr Peacock admissible on an application under the Crimes Act 1961 s 344A relating to images found on Mr Barber’s computer. Mr Peacock is an Inspector of Publications employed by the Department of Internal Affairs.

[3] Mr Barber has appealed to this Court against that ruling.

Background

[4] In 2003 the Department of Homeland Security in the United States of America set up an operation to identify and prosecute offenders and disrupt activities surrounding child pornography. It utilised an undercover operation to penetrate a US-based business that was a clearinghouse for internet access to about 50 child pornography websites. One result was that US authorities obtained records of log ons between February 2002 and July 2003 to child pornography websites for thousands of customers around the world and provided details to national authorities, including the New Zealand Customs Service.

[5] On 21 February 2005, Customs and Police officers executed a search warrant on Mr Barber’s premises and seized his computer and its hard drive. There is no challenge to the search.

[6] Mr Barber gave officers computer details including his passwords and is said to have told a detective that he had a “preference for girls 13 and older to 16 years old”.

[7] The hard disk drive in Mr Barber’s computer was cloned and sent to

Mr Peacock who has, since its inception in 1996, been a member of the Censorship

Compliance Unit with the Department of Internal Affairs, investigating internet- based offending, particularly that involving child pornography. In that capacity he has not only conducted many computer searches of such material but has also attended a number of training courses, including an investigation of computer systems using specific software applications.

[8] Mr Peacock located over 63,000 image files in directories on the hard drive including one called “News Rover”, which he knew from previous investigations to be an application used to access news groups on the internet. There were about

30,000 image files in the News Rover application on Mr Barber’s cloned hard drive, including a number of text references indicating the electronic address of the server from which the files had been downloaded. In an email on the hard drive Mr Peacock located references to the purchase of a subscription to a website called “Mr Double” within which he concluded would be material objectionable under the Films, Videos, and Publications Classification Act. Further, he located 175 link files in a folder including the name “settings\ian\recent” which, when opened, showed that 10 files that he considered objectionable had been accessed. On re-examining the News Rover application he discovered some 23 directories containing material downloaded from nine different news groups and found in at least two directories something over 14,000 still and moving images, the majority of which he considered to be objectionable as depicting young girls appearing to be about 12 to 14 years of age engaged or posing in sexual acts. In another folder he found some 1427 still and moving image files that he also considered to be objectionable. They are the subject of the charges.

[9] During the s 344A hearing, Mr Peacock said that:

News Rover is ... a piece of software that a computer user can download and install onto their computer ... just like microsoft word or excel [and] ... is designed specifically to allow the person to ... access a section of the internet relating to what are called news groups.

He continued by saying that:

News Rover is a piece of software that will be sitting, in this case, on the defendant’s computer.

Once a user gains access to News Rover, Mr Peacock said there would be over

50,000 groups that could be searched to lead to websites in which the user had a particular interest. That included erotic or sexually explicit websites. Once downloaded, the file was automatically saved by the software once it was installed on the user’s computer. Asked about the reliability of the News Rover software - the nub of the objection in the District Court and on this appeal – Mr Peacock said:

The News Rover software has to be downloaded on to your machine. It then has to be installed onto your system. I have yet to come across anything that could do this automatically for you. It is a user generated process. Once the application is installed the user has to select the news service from which they’re going to select the groups to access. There is a further step .... From there they have access to, in some cases, 60,000 or 70,000 different groups from which to access material. It is a choice that they make, which groups to participate in or access material from. The operation of the software allows once the download is completed a review of the material. In my dealings with it, I found it to be a very effective mechanism for downloading files and downloading material, I have found with the MCLT directory it to be accurate in terms of the type of material that’s going to be there. I would have thought that if a user had used News Rover for example and accessed the server and thought that MCLT related to something completely different and they found it to be 12 to 14 year old girls, that if that wasn’t their interest they would have ceased downloading from that straight away.

Mr Peacock said the initials MCLT were an acronym well known to him for “My collection of Lolita Teens (or “Tots”)” which was always consistent with pornographic images of females in the 12 to 14 year age range.

[10] In cross-examination Mr Peacock admitted having no tertiary qualification in computer science or similar disciplines, having not communicated with the manufacturer of the News Rover program or bought the product, and being unaware whether the version he saw may have been pirated, altered or affected by a computer virus.

Judgment under review

[11] Judge Field summarised the objection to Mr Peacock’s evidence thus:

[2] [Mr Barber] challenges the admissibility of the images/files downloaded using “News Rover” software on the basis that there is no evidence as to the search terms inputted into the programme at the time the searches were conducted and, further, that there is no evidence as to the accuracy, reliability or functions of the software.

[3] Further, he challenges the assertion by customs investigator, Jon Peacock, that “MCLT” is an acronym for “My collection of Lolita Teens” and the associated inference that Mr Barber was aware of this. The respondent does not accept that Mr Peacock, in any event, is an expert qualified to give his opinion as to the meaning of the acronym or upon a number of matters raised by him in the course of his evidence.

[12] The Judge went on to accept Mr Peacock’s qualification as an expert, adopted his description of “MCLT” because of his frequent encounters with it and then passed to the News Rover program that the appellant accepted he had operated. After summarising the method of its operation, the Judge concluded (at [14]) that there was no suggestion Mr Barber’s computer was not working properly, that he had not subscribed to News Rover and that he had not downloaded images of young girls.

[13] Turning to issues of reliability and accuracy, the Judge summarised the opposing contentions, the evidence - including Mr Barber’s admission - and the decision of Judge David Harvey in R v Good (2005) 22 CRNZ 269 (DC) concerning evidence of technological devices, particularly computers and technologies used by them. He concluded:

[23] ... There is nothing in the evidence so far which would indicate that either the computer or the programme is unreliable or suspect. The frequency with which Mr Barber visited the site and his admission of interest in the particular subject matter may well point to a deliberate use of the computer to access this material as opposed to inadvertence or the contamination of the programme by means of the “Trojan” virus or similar, and there is simply no evidence of this.

Submissions

[14] In comprehensive submissions supporting the appeal, Mr Trenwith for Mr Barber elaborated on the matters to be raised in the District Court. Noting that Mr Barber was charged with importing the objectionable images, not their possession, he submitted that what was in issue, both in the District Court and on appeal, was the accuracy of the News Rover program used by the appellant to download. He submitted there was no evidence as to the functions, accuracy or reliability of the program. He contended it was necessary, as a pre-requisite to the evidence being ruled admissible, for the Crown to lay an evidential foundation to show that the program was reliable. As he had in the District Court, Mr Trenwith

raised the possibility of the program having been disturbed by hacking, or of what appeared on Mr Barber’s computer being merely a rogue result indicative of software malfunction. He said that, without evidence as to the normal functions of the program, the Court could not know whether what was produced by the search of Mr Barber’s computer was what might normally be expected. He again made the point that Customs had not compared the program on Mr Barber’s computer with one it might have obtained from the manufacturer and stressed Mr Peacock’s lack of technical qualifications in software programming.

[15] Mr Trenwith then went on to deal with the presumption of accuracy as to the function and operation of mechanical or scientific instruments in general use, relying on Good (at [63]) and Holt v Auckland City Council [1980] 2 NZLR 124 (CA). However, he accepted that this Court held, as long ago (in computing terms) as 1988, that computer printouts were admissible: R v Miller (1988) 3 CRNZ 609, 614. Miller, he submitted, should no longer be followed given the different result the English Court of Appeal arrived at in R v Minors [1989] 2 All ER 208. He submitted computers remained new or novel devices as described in Good and accordingly expert evidence was required to establish the reliability of Mr Barber’s computer and the News Rover program. Even if there were a presumption at common law as to the accuracy and reliability of the News Rover program, he submitted, it had been successfully rebutted.

[16] For the Crown, Ms Markham submitted that the appeal was misconceived. The Crown case did not depend on the results of tests or calculations performed by machine as in Holt or recorded by computer as in Marac Financial Services Ltd v Stewart [1993] 1 NZLR 86 (HC), nor did it depend on issues of fairness as in Good. She submitted that computers and computer programs were now so ubiquitous and reliable that, even were it relevant – which she denied – the presumption of accuracy was satisfied in this case. She submitted that this was a case of “real evidence of electronic images and files located in the appellant’s computer drive”, the finding and location of which were not in dispute. All the issues raised by the appellant might, she submitted, be raised as issues at trial but did not bear on the admissibility of the material obtained under the warrant.

Discussion

[17] With the Crown, we take the view that Mr Barber’s appeal is misconceived. [18] As put to Mr Trenwith in exchanges between Bench and Bar, at this

preliminary stage this is a straightforward issue. The appellant’s computer was seized under search warrant, the validity of which is not in contest. The hard drives of the computer were cloned. With Mr Barber’s co-operation, Mr Peacock, an expert, was able to gain access to images on the cloned hard drives. From his experience, Mr Peacock concluded that the images may be objectionable electronic publications under the Films, Videos, and Publications Classification Act. As Mr Trenwith was disposed to acknowledge during the hearing, what Mr Peacock found was, if admissible, plainly relevant and probative.

[19] As to admissibility, in our view Mr Peacock is entitled to give the evidence summarised at the appellant’s trial. The situation is, in essence, no different from the discovery on execution of a search warrant of any other material, electronic or written, imported into New Zealand, the importation of which may constitute an offence. The fact that the allegedly objectionable material was imported into New Zealand by the appellant installing the News Rover program on his computer and operating it in the way described by Mr Peacock so the images were stored on his hard drive is not, in principle, any different from the importing and holding of any other objectionable images imported into this country and held in any other form.

[20] Of course, at trial, in an endeavour to meet Mr Peacock’s evidence and raise doubt in the jury’s mind, he can be cross-examined as to his qualifications and experience and as to the likelihood of the images being downloaded and stored on Mr Barber’s computer in a way that would dispel the available inference that the appellant knowingly imported electronic material objectionable under the Films, Videos, and Publications Classification Act. But that, in our view, is a matter for trial and does not bear on the issue of admissibility of Mr Peacock’s evidence. In that regard, it is only fair to note that the Crown mentioned a number of issues that

would dispel the doubts the appellant intends to endeavour to raise, but Ms Markham accepted that those, too, were issues for trial.

Result

[21] In the result, we see no basis to interfere with Judge Field’s ruling on the Crown’s application under the Crimes Act 1961 s 344A. The appeal against the ruling is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington