Deliwala-Gedara v R [2021] NZCA 688 (15 December 2021)

Last Updated: 22 December 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA259/2021 [2021] NZCA 688

	BETWEEN	SENITH DEELAKA MUNASINGHE DELIWALA-GEDARA Appellant
	AND	THE QUEEN Respondent

Hearing:	29 September 2021
Court:	Goddard, Woolford and Mander JJ
Counsel:	A S Olney for Appellant JAA Mara for Respondent
Judgment:	15 December 2021 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard and Woolford JJ)

• [1] On 28 October 2020 the appellant, Senith Deelaka Munasinghe Deliwala‑Gedara, was found guilty following a Judge-alone trial before Judge Hobbs in the Wellington District Court^[1] of 13 charges of possessing objectionable publications, knowing or having reasonable cause to believe that the publications were objectionable.^[2] On 15 December 2020, he was sentenced to 250 hours of community work and 12 months of intensive supervision.^[3]
• [2] The appellant appealed against his conviction to the High Court on three grounds. On 19 March 2021, Gendall J upheld the District Court’s findings and dismissed the appeal.^[4] The appellant applied 13 working days out of time to this Court for leave for a second appeal against his conviction. On 30 July 2021, this Court granted an extension of time to enable the appellant to bring a second appeal and granted leave for him to proceed with a second appeal, but on one ground only — whether the District Court erred in allowing the Crown to adduce further evidence after the Crown had closed its case, under s 98(3) of the Evidence Act 2006.^[5]

Appeal jurisdiction

• [3] The appellant brings a second appeal against his conviction under s 237 of the Criminal Procedure Act 2011. This Court must allow the appeal if satisfied the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or in any case, a miscarriage of justice has occurred for any reason.^[6]

Background

• [4] On 27 August 2018, police executed a search warrant at the appellant’s residential address in Wellington. The appellant’s Toshiba Satellite L830 laptop computer was found and seized during the search. It was later analysed by a police computer forensic expert, who discovered objectionable publications on it. As a result, the appellant was charged with, and pleaded not guilty to, the charges which form the basis of the present appeal.
• [5] The appellant was arrested on the day the search warrant was executed on a separate charge of blackmail, which was later withdrawn. He was questioned both at the time of his arrest at his residential address and later in a formal interview. The questioning largely related to the charge of blackmail.
• [6] At the time of his statements to the police, the contents of the appellant’s laptop had not yet been analysed. After police computer forensic analysis revealed what appeared to be objectionable material on the laptop, the officer-in-charge sought a second interview with the appellant, which he declined. The officer-in-charge then reviewed the material and selected 13 video files for classification by the Office of Film and Literature Classification (OFLC).^[7] Counsel for the appellant was notified of the submission of the publications to the OFLC and informed of his right to make written submissions on the classification. The appellant chose not to do so. In two separate reports, both dated 21 August 2019, (one of which referred to two video files; the other to 11 video files) the OFLC described the content of the videos and determined that the video files were objectionable in terms of the relevant criteria set out in the Films, Videos, and Publications Classification Act 1993 (FVPCA).^[8] There was never any dispute or any issue raised about the classification of the video files as objectionable.

District Court hearing

• [7] At the District Court hearing on 13 and 14 October 2020, the Crown called two witnesses. The first witness was the police computer forensic expert who produced a revised report dated 6 October 2020. The expert’s findings included:

  (a) 144 objectionable pictures and video files were located on the appellant’s laptop.
  (b) Some of the files that were deemed to be of interest had been deleted, but were recovered during the forensic examination.
  (c) System files on the laptop showed considerable user interaction with the material of interest located on the laptop.
  (d) Nine of the 13 objectionable publications that were the subject of the charges had been viewed. The expert could identify the date on which two of those nine files were viewed, namely 9 January 2018 and 8 April 2018. He could not establish when the other seven objectionable publications had been viewed.
  (e) A LNK^[9] file was located in the recent items list. The file name “z[pthc] 12y Eζ6δoӨεα First Pussy Anal Fuck ... preteen HD 10y lly 13y lolita children kids.wmv” included the following terms commonly used to refer to child exploitation material:

  • PTHC — pre-teen hard-core;
  • 12y — 12 years old;
  • pre-teen; and
  • Lolita — a term commonly used to describe sexually explicit pictures or videos of pre-pubescent girls.

  
  (f) The user of the computer system used key words in Google searches for material that could be considered objectionable:

  • Jail bait 2013 nude — 2/08/2018 1:55:28 AM.
  • Jail bait 2013 — 2/08/2018: 1:55:07 AM.
  • Underage sex videos — 4/07/2017: 2:22:40 AM.

• [8] The police expert was, however, unable to determine when and how the relevant video files had been downloaded. He also acknowledged that the forensic analysis of the appellant’s laptop could not establish who downloaded the video files nor the identity of a person viewing the material.
• [9] The second witness was the officer-in-charge who gave evidence on executing the search warrant, questioning the appellant at his residential address and formally interviewing the appellant at the station.
• [10] At the time of his arrest, the appellant confirmed his laptop was password protected. He provided police with the password. When asked what sort of pornography was on his laptop, he said it was downloaded from the internet.
• [11] Shortly after his arrest, the appellant was formally interviewed. This interview was electronically recorded on a DVD. He confirmed that the pornography he downloaded related to consenting adults only and said there was nothing else on his laptop of a pornographic nature. The interviewing officer asked the appellant the following questions:

[Q.] Does anyone else use your laptop?

[A.] Nah, just me.

[Q.] And what about your previous laptop, the one that ...

[A.] Nah it ...

[Q.] ... was stolen?

[A.] ... just, just me.

[Q.] Just you using it?

[A.] Just me, yeah.

• [12] The officer then asked the appellant a number of questions about his living arrangements at the time, including the following:

[Q.] Okay. And you sleep in your bedroom alone? You don’t share your room with anyone else?

[A.] Nah, nah. I used to but long time ago – not long time. That, that’s the guy, like, he was there but he left to Indonesia. He was there before but not ...

[Q.] How long ago was that?

[A.] It was, ah, last, ah, last year, I think. He was the [head tenant’s], ah, friend.

[Q.] Oh, yep.

[A.] Yeah. And, ah, he was here for, like, 13 or 14 years from Indonesia. He’s from Indonesia ...

[Q.] Okay.

[A.] ... he was a kitchen hand. I was sharing my, ah, room with him before.

[Q.] Yep.

[A.] And he left, so ...

• [13] In a formal admission of facts pursuant to s 9(2) of the Evidence Act, the appellant admitted that the 13 listed video files had been classified by the OFLC as being objectionable under the FVPCA, so as to dispense with proof thereof.
• [14] At the conclusion of the Crown case, the appellant elected to give evidence. The material evidence given by the appellant was summarised by the Judge as follows:^[10]

  (a) The [appellant] had been living at the address in question since 2015. He lived at the address with eight other people. In 2015 he shared a room with [a roommate] for 5 to 6 months. There was then a period of one and a half months when he did not share a room before [a second roommate] shared a room with the [appellant]. The [appellant] could not remember the exact date [the second roommate] moved in but said he was there for two years. The [appellant] said [the second roommate] was from Indonesia but he did not know his full name. ...
  (b) The [appellant] said [the second roommate] and somebody called [R] knew the [appellant]’s password to his laptop. The [appellant] said he would leave his laptop open when he was at home and at work as it was charging. The [appellant] said he was also absent from the house for extended periods of time in the evening playing video games at Skynet Cafe. The [appellant] said there were occasions when he would come back to find [the second roommate] on his laptop and he put no restrictions on [the second roommate] using his laptop.
  (c) The [appellant] gave evidence that [the second roommate] moved out of the property two and a half weeks before the [appellant] was arrested on 21 August 2018. The [appellant] said he had no contact details for [the second roommate].
  (d) When asked why he told [the officer in charge] that [the second roommate] had moved out the year before he was arrested the [appellant] said he knew he was being charged with blackmail ... and he did not want [the second roommate] to become involved in his case or to implicate him.
  (e) When asked why he told [the officer in charge] that nobody else used his laptop the [appellant] effectively said that what he actually meant was that nobody else was using the laptop at the time of his arrest and after [the second roommate] had left for Indonesia two and a half weeks earlier.
  (f) The [appellant] gave evidence that he did not download the video files in question. The [appellant] said he was not aware that they were on his computer and had never viewed the video’s. He did not know how the video files came to be on his computer.

District Court ruling

• [15] On 14 October 2020 during the trial, after the Crown and appellant had closed their respective cases, the Judge drew the attention of the Crown to one of the elements of each charge that needed to be proved by the Crown beyond reasonable doubt, namely, that the appellant knew or had reasonable grounds to believe that the publications found on the appellant’s laptop were objectionable in terms of the FVPCA. The Judge said that given the basis on which the Crown had put its case, that assessment depended on whether what was depicted in the publications was such that it would have been objectively apparent to a person viewing each publication that it was objectionable. Because the Crown had not produced the publications themselves or adduced any evidence as to their content, the Judge said he was not able to conclude that that element of each charge was proved.
• [16] The Crown prosecutor then applied under s 98 of the Evidence Act to offer further evidence in the form of the reports prepared by the OFLC. Section 98, as relevant, provides:

98 Further evidence after closure of case

(1) In any proceeding, a party may not offer further evidence after closing that party’s case, except with the permission of the Judge.

...

(3) In a criminal proceeding, the Judge may grant permission to the prosecution under subsection (1) if—

(a) the further evidence relates to a purely formal matter; or
(b) the further evidence relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen; or
(c) the further evidence was not available or admissible before the prosecution’s case was closed; or
(d) for any other reason the interests of justice require the further evidence to be admitted.

(4) In a criminal proceeding, the Judge may grant permission to a defendant under subsection (1) if the interests of justice require the further evidence to be admitted.

...

• [17] The application was opposed by the appellant. In a short oral ruling delivered the same day, the Judge allowed the Crown to produce the two reports, both dated 21 August 2019, from the OFLC. The reports confirmed the classification of the videos as objectionable and described the nature and content of the video files and why they were deemed to be objectionable.
• [18] The Judge noted that there was no challenge by the appellant to the classification of the video files as objectionable and recorded that the appellant had conceded by way of a s 9 admission that the videos were objectionable, having been determined as such by the OFLC.
• [19] The Judge also noted that each of the charges in the Crown Charge Notice described in general terms what was contained in the videos. In the main, they were described as “depicting, promoting and supporting the exploitation of children or young persons for sexual purposes”. Two of the charges had an additional description of “exploitation of children or young persons for sexual purposes and the use of urine and excrement”. One had the additional description of “promoting and supporting the exploitation of children and young persons for sexual purposes and bestiality”.
• [20] The Judge recorded the Crown’s submission that the further evidence contained in the two OFLC reports related to a purely formal matter; namely, confirmation of why the publications were classified as objectionable, which was a matter accepted by the appellant. The Crown submitted that the status of the videos and their content had not been and could not be disputed. The Crown further submitted that it was in the interests of justice that the further evidence be admitted as the reports provided further detail in explanation of the contents of the video files.
• [21] The Judge said it was relevant to note that the appellant’s primary defence was that he was not in possession of the publications because he did not know they were on his laptop and therefore had never viewed them. The Judge noted that the primary defence, if accepted, would not require any consideration of whether the appellant knew or had reasonable cause to believe the publications were objectionable because on this basis, the appellant would never have seen them.
• [22] The Judge noted that the secondary defence was that if he was to conclude that the appellant had viewed the publications in question, the Crown had failed to prove that the appellant knew or had reasonable cause to believe that the publications were objectionable. The Judge concluded:

[15] I think it is highly relevant that there is no dispute and never has been that the publications in question are objectionable. In my view, these reports do nothing more than confirm what the [appellant] accept: namely, that the videos in question are objectionable. Therefore, the further evidence relates to a purely formal matter.

[16] If I am wrong in that conclusion, then I am satisfied that it is in the interests of justice that I, as the fact finder required to make decisions in this case, have available to me the basis on which the videos in question are deemed to be objectionable – which, as I have already noted, is not something that is disputed by the defence.

High Court appeal

• [23] The Judge’s ruling was challenged in the appellant’s conviction appeal to the High Court. Gendall J noted that the term “purely formal” in s 98(3)(a) is not defined in the Evidence Act.^[11] He did say, however, that in his view there was a reasonable argument that in all the circumstances the reports were a purely formal matter. Had the reports simply stated the publications were objectionable, he considered this would unequivocally have supported the view that they were purely formal. That classification clearly was not in dispute. Gendall J acknowledged that the reports did go on to contain some description of the content of the video files but in his view, the District Court Judge did not err in finding the reports could be largely seen as purely formal.^[12]
• [24] In any event, if he was wrong on this conclusion, Gendall J noted that there was a residual discretion to admit evidence if it was in the interests of justice. This discretion must be exercised sparingly outside of the s 98(3) exceptions. Prejudice to the defence, and relevance of the evidence to fundamental issues were relevant considerations.^[13]
• [25] Gendall J concluded:

[57] In my view, however, at a general level and adopting the Court’s residual discretion, it was in the overall interests of justice to adduce this evidence after the closing of the case. The Crown, it is accepted, could have produced the reports prior to closing. Importantly, however, I accept from the parties that they all accepted, first, that the videos were objectionable and, secondly, and in any event, the content of the videos and what they depicted does not appear to have been in serious dispute. Of significance, too, was the essential defence advanced by Mr Deliwala-Gedara in his evidence at trial directed only at the argument that it was not him but another individual that downloaded such material, and that he had never seen the material before.

[58] And, if I may be wrong on this and it could be established there had been an error here, the question, on an appeal like this is directed to whether that error created a real risk that the outcome of the trial was affected. In my view, overall, Judge Hobbs did not err in admitting the reports following the closing of the parties’ cases. It must follow, as I see it, that there is no real risk in this case the outcome of the trial was affected.

(Footnote omitted.)

Appellant’s submissions

• [26] The appellant submits that whether he knew or had reasonable cause to believe that the video files on his laptop were objectionable was an element of the offence which was in issue at trial.
• [27] While the appellant conceded that the videos were objectionable within the meaning of the FVPCA, he did not consent to the admission of the two reports. During the trial, the Crown did not produce the video files as exhibits or any evidence disclosing the content of the video files. The appellant gave evidence at trial that he did not view the video files or any part of them. The Crown did not challenge this evidence in cross-examination or put the issue of knowledge or reasonable belief to him.
• [28] After both the Crown and appellant had closed their cases, but while the Crown was making closing submissions, the Judge reminded the Crown that proof of the element of knowledge or reasonable cause to believe that the publications were objectionable was required.
• [29] The Crown’s application to adduce the reports as further evidence was made in response. This is because the reports contained detailed descriptions of the video files, and the Crown sought to rely on those descriptions to fill the gap in their case identified by the Judge.
• [30] Despite opposition by defence counsel the Judge admitted the reports as further evidence. He then relied on the descriptions contained therein to conclude that it followed from his finding that the appellant had viewed the videos that the appellant knew, or had reasonable cause to believe, that the video files were objectionable publications. The nature and content of the videos as described in the reports was such that a person viewing them would have reasonable cause to believe that they were objectionable publications.

Respondent’s submissions

• [31] The Crown submits that there are no identifiable errors in the determination of the High Court which constitute a miscarriage of justice in this case. The reports were properly admissible as further evidence under s 98, either as a purely formal matter, or because the interests of justice required it. Furthermore, the High Court Judge considered that there was no real risk that the outcome of the trial was affected.^[14] Therefore, any error is not sufficient to constitute a miscarriage of justice or an unfair trial.

Discussion

• [32] The Evidence Act provides that in a criminal proceeding, further evidence for the prosecution may be admitted after the prosecution has closed its case with the permission of the Judge. Section 98(3) provides four bases for admission:

(a) the further evidence relates to a purely formal matter; or

(b) the further evidence relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen; or
(c) the further evidence was not available or admissible before the prosecution’s case was closed; or
(d) for any other reason the interests of justice require the further evidence to be admitted.

• [33] The bases for admission of the reports relied on by the Crown in this case are that the evidence relates to a “purely formal matter”, or its admission is required by the “interests of justice”. Plainly paras (b) and (c) of s 98(3) do not apply: the need to prove the knowledge element of the offence should have been foreseen before the trial, and evidence could have been called to address that issue before the Crown closed its case. It was highly undesirable that the video files themselves be shown in Court as they promoted and supported the exploitation of children for sexual purposes. But evidence about the content of the videos could have been provided by a witness who had viewed the videos, or by applying to adduce the reports as evidence of the truth of their contents. The Crown could, and should, have anticipated the need for such evidence.

Does the evidence relate to a purely formal matter?

• [34] The phrase “purely formal matter”, as used in s 98(3)(a), is not defined in the Evidence Act. As an adjective, “formal” generally means “of or concerned with (outward) form or appearance, esp. as distinct from content or matter”.^[15] The phrase “purely formal” reflects the language used by this Court in the pre-Evidence Act case R v Timutimu, summarising the common law approach to the circumstances in which the court may allow the Crown to call further evidence after closing its case:^[16]

[The] rationale [for the requirement that the Crown adduce all evidence it relies on before closing its case] is fairness to the accused, so that he or she has an adequate opportunity to know the Crown case and plan a defence accordingly: R v Chin [1985] HCA 35; (1985) 157 CLR 671. Nevertheless, the Court has an inherent jurisdiction to allow the Crown to call further evidence at a later stage. The discretion is to be used sparingly and in such a way as to strike appropriate balance of justice between the Crown and the defence. The two recognised categories of exception are, first, situations involving purely formal issues and, second, where the issues have arisen unforeseeably or ex improviso. The discretion will be exercised rarely outside these two exceptions: R v Francis (1990) 91 Cr App R 271 at 275 - 276.

• [35] As an example of a purely formal matter, the Law Commission, in its report reviewing the law of evidence, referred to “formal evidence that the Attorney-General has given the necessary consent to a prosecution under s 144A of the Crimes Act 1961 (sexual conduct with children outside New Zealand)” under s 144B of that Act.^[17]
• [36] Another example is provided by Murray v Ministry of Transport,
  a pre-Evidence Act drink-driving prosecution where, following the close of its case, the Crown was permitted to call evidence that the defendant’s blood sample was forwarded to a private analyst in accordance with the technical requirements of s 58B of the Transport Act 1962.^[18]
• [37] In cases of this kind, the evidence establishes an essentially incontrovertible fact which is relevant to a formal element of the charge. The cases where evidence has been admitted under this heading do not extend to evidence that might be open to meaningful challenge, or that go to a significant substantive element of an offence.
• [38] In the present case, one of the elements of the offence which needed to be proved by the prosecution was that the appellant knew or had reasonable cause to believe the video files were objectionable on the date the search warrant was executed. Under s 131 of the FVPCA, it is an offence to possess an objectionable publication, punishable (in the case of an individual) by a fine not exceeding $2,000. Under s 131A — the provision under which the appellant was charged and convicted — it is an offence to possess an objectionable publication knowing or having reasonable cause to believe that the publication is objectionable, and an individual who commits this offence is liable to imprisonment for a term not exceeding 10 years or to a fine not exceeding $50,000. The knowledge element is a significant aggravating factor that results in liability to a much more severe penalty.
• [39] Although the video files were subsequently classified as objectionable by the OFLC, and the appellant admitted that classification, the element of knowledge or reasonable cause to believe had to be proved as at 27 August 2018. The Court had to turn its mind to the evidence of the appellant’s knowledge or reasonable cause to believe that the videos were objectionable, and determine whether this element of the s 131A offence had been proven beyond reasonable doubt.
• [40] The reports were offered in evidence to establish the content of the videos, with a view to enabling the Judge to draw an inference that a person who had watched the videos would necessarily know or have reasonable cause to believe that the videos were objectionable. This evidence was offered to establish a significant element of the offence with which the appellant was charged, not a merely formal element of the charge as in the Law Commission’s example, or as in Murray v Ministry of Transport.
• [41] Nor was this a case in which the relevant evidence established an essentially incontrovertible fact. The descriptions in the reports were concerned with the substantive content of the videos. The accuracy and completeness of such descriptions could in principle be contested.
• [42] In summary, the reports were not used to establish an essentially incontrovertible fact, and did not go to a merely formal element of the charges against the appellant. It follows that the reports did not relate to a “purely formal matter”. The reports could not be admitted under s 98(3)(a).

Should the reports be admitted in the interests of justice?

• [43] Commentary on the Evidence Act suggests the “interests of justice” discretion in s 98(3)(d) is very narrow. Mahoney on Evidence observes that “the particular circumstances listed in s 98(3)(a)–(c) suggest a more restrictive judicial attitude toward prosecution requests under s 98(3)(d)” as compared with defence applications on the same grounds at s 98(4).^[19] The Law Commission noted that s 98(3)(d) was added “to avoid injustice in exceptional circumstances that do not fit within
  paras (a)–(c)”.^[20] And in Timutimu this Court observed that at common law the discretion would rarely be exercised in this residual category.^[21]
• [44] We agree that it will be rare for the Crown to be permitted to offer further evidence after closing that goes beyond purely formal matters, where the need for that evidence should have been foreseen by the Crown before trial. The court would need to be satisfied that there was no unfairness to the defendant as a result of admitting the evidence in question at that late stage. If there is a realistic prospect that the defendant would have approached any aspect of their defence differently if the evidence had been offered before the close of the Crown case, it will not be in the interests of justice to allow the evidence to be given.
• [45] In the present case, Mr Olney, counsel for the appellant, said that the defence was prepared on the basis of the Crown’s disclosure, which did not contemplate any evidence being given about the content of the videos. He said it was difficult to say with certainty how the case would have been run differently. But by way of example, questions might have been pursued about whether all — or relevant parts — of the videos had been viewed. The appellant had briefed a forensic expert who had viewed the videos. But, Mr Olney submitted, because no evidence about the content of the videos was offered by the Crown until the end of the trial, there was no opportunity to consider whether that expert should give evidence that might inform the inference the Judge was asked to draw (and did draw).
• [46] We consider that this is one of the rare cases in which it is in the interests of justice for the Crown to be permitted to offer further evidence after closing. It was plainly in the interests of justice that the objectionable videos not be shown in court, if that was not essential. The hearing proceeded on the basis that the videos that were the subject of the charges under s 131A of the FVPCA need not be shown, because the appellant had admitted that they were objectionable. However the result of adopting that sensible course of action was, as the Judge identified in the course of the Crown closing, that there was no evidence before him from which an inference might be drawn about the appellant’s knowledge that the videos were objectionable if — contrary to his primary defence — he had downloaded those videos onto his computer. When this consequence of not viewing the videos in the course of the Crown case became apparent, it would in our view have been in the interests of justice for the Judge to direct under s 98(3)(d) that the videos be received in evidence. Permitting the reports prepared by the OFLC to be offered as evidence about the content of the videos, rather than viewing the videos themselves, was preferable to admitting and viewing the videos, in the absence of any suggestion that the reports did not accurately describe the videos. No such suggestion was made before the Judge, or before us.
• [47] We are satisfied that there is no realistic prospect that the appellant would have approached any aspect of his defence differently if before the close of the Crown case the videos had been put in evidence and viewed, or the reports describing the content of those videos had been put in evidence. The possible responses to such evidence outlined by Mr Olney are highly speculative, in the absence of any reason to think that the descriptions in the reports were inaccurate.
• [48] Nor, in light of the descriptions in the reports, can we see how any of the suggested responses to evidence about the content of the videos could have assisted the appellant. There was evidence that he had viewed nine of the videos. The reports confirm that a number of these videos were very brief (less than one minute) and plainly objectionable throughout. It was inevitable that the Judge would find that the appellant had reasonable cause to believe that each of the videos the appellant had viewed was objectionable.^[22] And in light of that finding, the appellant’s obvious and significant interest in child pornography, and the file names and folder locations of the remaining four videos, it was inevitable that the Judge would draw the inference that the appellant had either viewed those four videos (so knew they were objectionable), or had reasonable cause to believe they were objectionable.^[23]
• [49] In these exceptional circumstances, we are satisfied that was in the interests of justice for the Crown to be permitted to offer the reports in evidence after closing. There was no miscarriage of justice.

Result

• [50] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Deliwala-Gedara [2020] NZDC 21197 [District Court judgment]. The appellant was found not guilty of four charges of possession of an intimate visual recording: Crimes Act 1961, s 216I.

^[2] Films, Videos, and Publications Classification Act 1993 [FVPCA], s 131A(1) and (2)(a): maximum penalty 10 years’ imprisonment or $50,000 fine.

^[3] R v Deliwala-Gedara [2020] NZDC 27293 at [19].

^[4] Deliwala-Gedara v R [2021] NZHC 570 [High Court judgment].

^[5] Deliwala-Gedara v R [2021] NZCA 361.

^[6] Criminal Procedure Act 2011, ss 240(2) and 232(2).

^[7] Pictures, videos or other publications can only be classified as objectionable by the OFLC in terms of the FVPCA. For the meaning of “objectionable” see FVPCA, s 3.

^[8] See FVPCA, s 3.

^[9] A LNK or link file is a shortcut for a file which is created when a file is opened for the first time. In Windows 8 on which the laptop was running, LNK files are created and stored in the “Recent Items” folder.

^[10] District Court judgment, above n 1, at [18].

^[11] High Court judgment, above n 4, at [48].

^[12] At [49].

^[13] At [50].

^[14] At [58].

^[15] Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford University Press, Melbourne, 2005) at 416.

^[16] R v Timutimu CA236/06, 30 November 2006 at [12].

^[17] Law Commission Evidence: Evidence Code and Commentary (NZLC R55 vol 2, 1999) at [C360].

^[18] Murray v Ministry of Transport [1984] 1 NZLR 610 (CA) at 617, discussed in Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (4th ed, Thomson Reuters, Wellington, 2018) at [EV98.02(2)(a)].

^[19] McDonald, above n 18, at 672–673.

^[20] Law Commission Evidence: Reform of the Law (NZLC R55 vol 1, 1999) at [434].

^[21] Timutimu, above n 16, at [12].

^[22] District Court judgment, above n 1, at [27].

^[23] At [31].