The Queen v Spark [2009] NZCA 198 (20 May 2009)

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The Queen v Spark [2009] NZCA 198 (20 May 2009)

Last Updated: 27 May 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/2009 [2009] NZCA 198THE QUEEN

v

MALCOLM ALBERT SPARK

Hearing: 20 May 2009

Court: Baragwanath, Hugh Williams and Winkelmann JJ

Counsel: S Vidal for Appellant (by telephone)
M D Downs for Crown

Judgment: 20 May 2009 at 4pm

JUDGMENT OF THE COURT

The application for bail is dismissed

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1] Mr Spark was convicted by a District Court jury and on 30 March 2009 sentenced to 2½ years imprisonment on counts of making and possessing an objectionable publication. He applies for bail under s 70 of the Bail Act 2000, which empowers this Court to grant bail pending the fixture on 1 July 2009 for his appeal against conviction.
[2] By s 14 we must not grant bail unless satisfied that do so would be in the interests of justice in this case. They include the nature of the offence for which the applicant has been convicted, the strength of the grounds of appeal, the length of the sentence and the time until the appeal hearing. The civil standard of proof applies.
[3] The convictions were on:

• (a) ten counts of making an objectionable publication knowing or having reasonable cause to believe the publication was objectionable;
• (b) 14 counts of possession of an objectionable publication knowing or having reasonable cause to believe the publication was objectionable.

Each offence is punishable under the Films, Videos and Publications Classification Act 1993, the former carrying ten years imprisonment (ss 123(1)(a) and 124(1) and the latter five years (s 131A).

[4] “Publication” is not used as a verb with the sense of communicating to another. Rather it is simply a noun, defined by s2 as including any film or photograph. A publication is “objectionable” if it deals with matters such as sex in such a manner that the availability of the publication is likely to be injurious to the public good. In particular:

... a publication deals with a matter such as sex ... if –

(a) the publication is or contains 1 or more visual images of 1 or more children or young persons who are nude or partially nude; and
(b) those one 1 or more visual images are, alone, or together with any other contents of the publication, reasonably capable of being regarded as sexual in nature.
[5] We are not seized of the appeal and we preface what we say about the facts with the statement that we have no more than an impressionistic idea of them. They may well be viewed differently in July. But since s 8(2)(b) of the Bail Act – “the strength of the evidence and the probability of conviction or otherwise” – lies at the heart of this application, we have attempted to form a general impression of those topics. Since we have not seen the notes of evidence we invited Ms Vidal to advise which parts of the allegations recorded in the judgment of this Court of 17 December 2008 in a pretrial appeal [2008] NZCA 561 were not proved. We have edited para [3] of that judgment by making the necessary deletions, indicated by three dots, and also certain changes which are italicised:

[3] At the outset of his judgment, Judge MacAskill recorded the factual allegations against the appellant from the prosecution summary. As they are accepted for the purposes of argument, we simply repeat those allegations, to the extent that they are relevant to the issue before us:

(a) In January 2006 an 11 year old girl in the North Island was contacted by Malcolm WEAM via the internet, specifically through her Zorpia webpage and later her MSN chat. In March 2006 (when the girl was turning 12) the girl’s mother observed chat conversations which seemed to be sexual and contacted the Department of Internal Affairs. The young girl’s profile was then operated by her mother, who recorded the chat conversations as well as the electronic address (IP) used by WEAM.
(b) As part of the conversation with the 12 year old about her body and the possibility of sexual feelings, the man sent images of himself, including one of his erect penis. As this image was intercepted by the girl’s mother, no charges have been laid in respect of it... Because of comments about “meeting” and “being together” the police were involved and obtained a search warrant under the Summary Proceedings Act [1957] for Telecom to identify the account holder using the IPs recorded by the mother of the young girl. The data obtained identified the accused, Malcolm Albert Sparks. Enquiries showed him to be a partially registered teacher, who had taught at several Christchurch area schools. A search warrant was obtained for his residential address and was executed on 24 April 2006. The search warrant was issued pursuant to s109 of the Films Videos & Publications Classification Act 1993 and was in relation to the making and possession of objectionable material. A camera, palm pilot, 12 CD rom discs, 21 diskettes, a laptop computer and a desktop computer were seized under the warrants.
(c) On examination, the desktop computer was found to have a directory of password protected documents and images under the accused’s user account name \MINE. On decrypting this data, the directory was found to have 59 sub directories named after chat subjects (eg Baygrllex, Ltlmssy91). The directory contained over 1200 image files and 96 document files. Eighty-one of the image files were classified as objectionable in that they featured the sexual exploitation of children and young persons or exploitation of the nudity of children and young persons. Ten examples were proved before the jury. Nine of the charges under s 131A relate to these image files.
(d) Seventy five of the 96 documents recorded chat sessions (over 400 in total) with 48 believed to be objectionable in that they involved girls aged from nine to 16 years in sexualised chats involving sex acts with the accused, including fellatio, cunnilingus, vaginal and anal sex. While the defence accepts that these topics were discussed in the documents it was not established that the acts actually occurred. The documents were created by children typing responses to the applicant. ... chats were found in which the accused discussed with young girls the insertion of lubricated candles in preparation for anal sex. The accused had recorded a summary with most chat logs in which he included details of the girls’ ages, weights, measurements, locations, and sexual practices discussed.
(e) The 10 charges under sections 124 and 123(1)(a) relate to this offending.
(f) A separate directory was found containing over 200 MSN chat logs, including the complete chat log with the 12 year old North Island girls which began the investigation. Most of the girls have been contacted by the applicant electronically initially through their Zorpia web pages. Two of the 17 charges under s131A relate to chat logs from this directory.
(g) In total, over 6000 chat contacts were found, many with names suggesting the contact was a young girl (eg Am11yr, Fun_gurlie_12, Lili8yroldcutie, Yng_girl_12). Evidence of visits to e-groups such as Muscleteens was found, as well as chats including sexual fantasies showing the accused to have a preference for young teen or pre-teen girls who are muscular and strong. The chat logs show the accused to masturbate while chatting with young girls ...electronically rather than by voice or web cam... or looking at their pictures. Because of the volume excerpts were played by the Crown. .
(h) Examination of the diskettes showed one to contain eight objectionable stories written by the accused in 1999 and described sexual acts between an adult male and 10 and 12 year old girls. One story was found to involve the seduction (by a 12 year old) of a mathematics teacher with a penchant for muscular women (the defendant has been a mathematics teacher). Three of the charges under s131A relate to these stories.
[6] Since the relevant amendments to the legislation were not enacted until 22 February 2005, conduct in 1999 did not constitute an offence.
[7] Ms Vidal submitted that in assessing the grounds of appeal it is significant that the applicant’s case is the first to proceed to a jury trial under the new provisions. She contended that the case engages important, indeed fundamental, issues of State curtailment of freedom of speech and freedom of thought.
[8] Several of the grounds of appeal were the subject of this Court’s determination on 17 December 2008. There is no evident flaw which would make it appropriate for us to disagree with that judgment in the course of this bail decision.
[9] The other grounds relied upon are:

• (a) Although defined as “open publications”, the documents were not intended to be published and consequently not injurious to the public good;
• (b) The charges infringe s 13 and 14 of the New Zealand Bill of Rights Act 1990 which respectively guarantee
  • (i) The right to freedom of thought, conscience, religion and belief, including the right to adopt and hold opinions without interference;
  • (ii) To freedom of expression, including the freedom to impart information and opinions of any kind in any form;
• (c) The District Court Judge misdirected the jury as to elements of the offences;
• (d) There was misconduct on the part of the Crown;
• (e) The Judge wrongly prevented cross-examination to the effect that what was in the documents was not sexual grooming;
• (f) The jury could not possibly have assessed the evidence properly without returning its verdict only 25 minutes after their retirement.

[10] Ms Vidal accepts that we can make no assessment of the summing up which is not yet available nor, in the absence of the notes of evidence, can we appraise even in the provisional way the conduct of the hearing.
[11] Ms Vidal agrees that the sole factor appropriate to take into account in terms of the strength of the grounds of appeal is the two-fold argument based on ss 13 and 14 of the Bill of rights:

• (a) He is entitled to freedom of thought and expression.
• (b) That the applicant kept the material to himself; and

While we emphasise that we do not pre-empt the decision on the substantive appeal, on the necessarily limited materials before us we find both grounds insubstantial.

[12] As Ms Vidal properly accepted, a purpose of the 2005 amendments to the statute is to impose a degree of censorship. To that extent the applicant’s rights of freedom of thought and expression under ss 13 and 14 of the Bill of Rights are curtailed. That is apparent from the language of the relevant sections which we have emphasised:

123 Offences of strict liability relating to objectionable publications

Every person commits an offence against this Act who

(1)(a) Makes and objectionable publication

(3) It shall be no defence to a charge under subsection (1) of this section that the defendant had no knowledge or reasonable cause to believe that the publication to which the charge relates was objectionable.

124 Offences involving knowledge in relation to objectionable publications

(1) Every person commits an offence against this Act who does any act mentioned in section 123(1) of this Act, knowing or having reasonable cause to believe that the publication is objectionable.

131 Offence to possess objectionable publication

(1) Subject to subsection (4) and (5) of this section, every person commits an offence against this Act who, without lawful authority or excuse, has in that person’s possession an objectionable publication.

(3) It shall be no defence to a charge under subsection (1) of this section that the defendant had no knowledge or no reasonable cause to believe that the publication to which the charge relates was objectionable.

131A Offences relating to possession of objectionable publications and involving knowledge

(1) Every person commits an offence who does any act that constitutes an offence against section 131(1), knowing or having reasonable cause to believe that the publication is objectionable.

[13] The s 13 argument overlooks the abuses that have occurred to create the materials in the applicant’s possession. While Ms Vidal submitted that indecent material, notably photographs of themselves, was sent to the applicant by young girls, that can afford no excuse. That section of the Bill of Rights is not intended to countenance the creation and possession of child pornography in breach of the s 9 right of the children not to be subjected to degrading treatment.
[14] Nor does it appear that the appellant kept the objectionable materials to himself. The flavour is rather of his using it in communication with children, which is how the complaint against him came to be made in the first place. Section 14 affords no defence against to such communications. On the contrary, Parliament has provided stern penalties for the class of conduct of which the appellant has been convicted.
[15] The interests of justice include a clear message from the courts that children are to be protected. We are not persuaded that there is such substance in the appeal that there is significant risk of injustice to the appellant.
[16] The application is dismissed.

Solicitors:
Crown Law Office, Wellington