R v De La Tour DC Hamilton CRI-2009-075-1221 [2011] NZDC 875 (9 June 2011)

Last Updated: 3 October 2016

IN THE DISTRICT COURT AT HAMILTON

_{CRI-2009-075-001221}

THE QUEEN

Informant

v

RODNEY ALEXANDRE DE LA TOUR

Accused

Hearing: 21 22 23 25 March 2011

Counsel: Ms Clark for Respondent

Mr Hall for the Informant

Judgment: 9 June 2011

_{ORAL JUDGMENT OF JUDGE D C CLARK}

Preface

When advised that an appeal had been lodged a request was made for my oral decision to be transcribed. For reasons unknown to me the decision was not recorded. This decision is not therefore a final draft but represents the draft that I had prepared in advance with amendments I had made prior to reading it in open Court on 9 June 2011.

_{To the best of my recollection it represents what I read out in Court.}

R V RODNEY ALEXANDRE DE LA TOUR DC HAM CRI-2009-075-001221 9 June 2011

[1] The accused is charged with possession of objectionable publications with knowledge pursuant to s 131(A)(1) of the Films Videos and Publications Classifications Act 1993. The background to the allegations is that in December of

2007 the New Zealand Police received information from Interpol about operation “Sledgehammer” that had to do with the illegal uploading of objectionable images onto an otherwise legitimate astronomy website. Over a period of approximately 70 hours those images were available to those persons who knew where to find them for downloading purposes.

[2] The New Zealand Police became involved in tracing one such download to an internet account address, identified through Telstra Clear as belonging to a Crown witness Claude Taylor.

[3] On 27 July 2009 a search warrant was executed at Mr Taylor’s address, 53

Waiomu Valley Road and a computer and two USB flash drives were seized. Mr Taylor denied any involvement in the download from the astronomy website but advised the Police that he shared his Telstra Clear dial up connection with his friend the accused Rodney De La Tour James.

[4] On 29 July 2009 the Police executed a search warrant at the accused’s address and two computers, disks, videos and USB flash drives were seized. The accused was also asked on a preliminary basis whether he knew anything about the download from the astronomy website. He denied knowledge of that.

[5] He did accept however that he shared the internet connection with Mr Taylor and when asked if the Police might find any objectionable images which included (page 2 of typed copy of accused’s statement) “any images or videos of children in sexually exploitive positions, naked children or beastiality or videos, this is not an exhaustive definition”, the accused replied “there might be something on beast but I don’t know, there’s definitely adult video and images”.

[6] Objectionable images were found on a USB flash drive taken from Claude Taylor’s address and on a hard drive in a computer tower taken from the accused’s address. The USB flash drive contained photographic and video images on beastiality and the computer hard drive included photographs and videos depicting child pornography. For the purposes of trial the accused accepted that the images and videos located by the Police and described in the spreadsheet produced as exhibits in the trial were objectionable “pursuant to s 3 of the Films, Videos and Publications Classifications Act 1993”.

[7] Guilty pleas were entered during trial to counts 3 and 4 of the indictment. Those counts related to the USB flash drive which had been in the possession of the accused before being given (apparently inadvertently) to the witness Claude Taylor.

[8] The remaining counts 1 and 2 relate to the possession of objectionable publications being photographic images and video images found on a desk top computer hard drive at the accused’s address. The accused lived alone.

[9] The Crown is required to prove that the accused on or before 29 July 2009 at Thames without lawful authority or excuse, had in his possession an objectionable publication knowing, or having reasonable cause to believe that the publication was objectionable.

[10] The principle issue in this trial is whether the accused had possession of such objectionable images, namely did he have actual or potential control, did he know what it was that he controlled, did he intend to exercise control and did he have voluntary possession.

[11] Counsel acknowledged that the decision of Police v Meyrick (Nicholson J Hamilton High Court 31/7/07) is helpful in relation to the definition of possession but is otherwise distinguishable on the facts from the present case.

Evidence

[12] For trial the Crown called evidence from witnesses Claude Taylor (Telstra dial up connection account holder and friend of the accused), Constable Steven Malloy (officer in charge of exhibits at searches of Claude Taylor and the accused’s addresses), Allan Langille (supervising analysit for the Electronic Crime Laboratory for the New Zealand Police in Auckland) and Detective Constable Andre Cavanagh (officer in charge and the officer who interviewed the accused on two separate occasions).

[13] The accused gave evidence in his defence.

Evidence Claude Taylor

[14] Claude Taylor gave evidence that he and the accused shared an internet connection and further that the accused had a desk top computer and had acquired a laptop sometime later.

[15] Mr Taylor talked about fixing the accused’s computers when affected by viruses and he spoke in particular about the desk top computer owned by the accused and said that there were two hard drives. Aside from the viruses that Mr Taylor dealt with from time to time, he described the computer as running (generally reasonably well).

[16] It was put to Mr Taylor (page 17) that the accused had advised him that the second hard drive had been disposed of because it was inoperable. Mr Taylor recalled the accused telling him something like that, but couldn’t remember exactly what it was.

[17] It was not put to Mr Taylor specifically however that he could not have worked on the desk top computer after 2006 because it had become inoperable at that time.

[18] Although Mr Taylor said that he was “guessing badly” (page 7), he said that the last time he worked on the desk top was some 4- 5 months prior to the Police searching his address (on 27 July 2009). Mr Taylor also described successfully cleaning up the computer (page 8).

[19] Constable Malloy was the officer in charge at the time of the search warrant executed at the accused’s address. He gave evidence that the computer tower containing the hard drive was found plugged in at the accused’s address (pages 25 and 27) and that there were a number of different cords attached to it, including the power cord, a USB connection and another older style cord (page 27). He produced a photograph booklet (Exhibit 1) which showed the accused’s work station. The Constable said that the power cord was plugged into a power box, however he was not sure if the power was on or off.

Evidence Alan Langille

[20] Mr Langille gave expert evidence (his expertise was not questioned) as the supervising analyst for the Electronic Crime Laboratory for the New Zealand Police in Auckland.

[21] Detective Constable Canavagh forwarded a number of exhibits to Mr Langille for examination. For the purposes of trial the relevant exhibits were Police Exhibit TCR.1, the tower desk top taken from the accused’s address and VW.3 the flash drive located at Claude Taylor’s address. Mr Langille prepared a report, produced as Exhibit 2, which described the analysis of those exhibits.

[22] He confirmed that the information stored or contained in the items provided for analysis was not altered in any way during that analysis (page 35).

[23] Mr Langille found that TCR 1 contained two removable hard drive trays however only one had a hard drive installed, further that TCR.1 did not have a hard drive with an installed operating system, therefore would not boot (start up). The data on the hard drive could however be accessed. Further the hard drive in TCR.1 was removable and would work if put into another computer tower (page 47).

[24] Mr Langille said however that the “created date” with regard to information stored or contained in the hard drive would not change and was confirmation of the first occasion upon which information was stored on a particular media (page 50). While some anti-virus software for example could change the last accessed date, the created date would not change.

[25] In the absence of an operating system, Mr Langille examined the content on the computer to see what inference might be drawn as to people who had used the computer.

[26] Mr Langille found email in folders in path\internet download\ which contained gmail messages with the user name of Rodney De La Tour. Photographs identified as the accused were found in the folders \my pictures\my 60th\. A further folder found in the \my pictures\ path was named “Rod Pre” and that folder contained 104 objectionable images. All of the folders described in the electronic crime laboratory report at pages [10] and [11] were created on the same date, being

27 May 2008 (pages 59 to 61). That meant that all of the objectionable publications, all of the accused’s personal gmail information and personal photographs were first stored on the hard drive on that date.

[27] The 104 images found in the folder called “Rod Pre” had also been viewed in thumb format (page 58) being a chosen format to view images in a particular way. Mr Langille, when talking about the folder “Rod Pre”, indicated that the term “pre” was commonly associated with pre-teen images (page 61).

[28] When examining content, Mr Langille said that the video images would have had to have been put into a folder by a user and when asked to do a comparison between the flash drive and the hard drive seized, found that there were six images that were both on the hard drive and the flash drive.

[29] Mr Langille also determined that no malware was found on either TCR1 or WVR.3 (ie no viruses). It was put to Mr Langille in cross-examination that it was possible for viruses to actively manipulate files on someone else’s desktop. He said while in these circumstances where he had seen on the computer multiple folders containing questionable images in different places on the hard drive and also folders containing personal information which he considered strange behaviour for a virus, he did not exclude that being beyond the realms of reasonable possibility (page 77). Mr Langille qualified that in re-examination when asked how likely was it in his opinion that depositing files was the work of some kind of virus, said that in his opinion it was an unreasonable assumption and from his experience that is not what one would expect a Trojan (virus) to do, especially when considering a Trojan depositing files as opposed to viruses (page 84).

[30] Mr Langille said that the folders were a one group copying situation confirmed by the schedules showing how quickly the images were being copied. All the folders were saved at the same time.

Evidence of Detective Constable Andre Cavanagh

[31] Detective Constable Cavanagh gave evidence that when he first spoke with the accused on 29 July 2009 the accused confirmed that he had no other internet connection. Detective Constable Cavanagh produced Exhibits 3 to 10 in the trial (statements and schedules of interest). He also confirmed that there was no movement of folders when he analysed the images provided to him by Mr Langille (cross-examination page 105).

Evidence of Accused

[32] The accused, Rodney De La Tour James confirmed that he lived at 788

Thames Coast Road, Tapu and was a carver cum draughtsman, perhaps more appropriately described as an artist. He gave evidence that the desktop tower taken from his property was his computer, having been given to him by his sister in about

2002 and had become inoperable at the time he purchased his laptop, which was in December 2006 – a purchase from Dick Smith, a purchase confirmed by way of receipt (Exhibit A). He said that his desktop hard drive had become inoperable as a result of viruses, that he had taken it to Computer Geeks in Thames, who advised him that it was “fried” and simply threw it away.

[33] The accused said that the hard drive at issue had never been used since, that he had no access to it and confirmed that it was useless. He rejected any suggestion that

Mr Taylor had worked on the hard drive in 2009 or that Mr Taylor had been able to clean up the viruses as he had indicated. He did not know how personal photographs could be on the hard drive as the personal photographs referred to had been on a “cd”

prepared by family members as a birthday present to him, for his 60th birthday in

2007. He did not know how any child pornography got onto the computer.

[34] Mr De La Tour James acknowledged that Claude Taylor had called him and was very angry, asking him (page 117) “what the hell is going on?” and confirmed that he thought the police might come and visit, although he didn’t really know.

[35] He said that he had been very surprised when the police said that child pornography had been found on his desktop computer. He rejected that he had created any folders such as “Rod Pre”, indicating that Rod was never a name that he used.

[36] The accused indicated that other people used his computer and referred to a person by the name of Noel although thought that he had used his computer sometime back in 2006. He also gave evidence that another person, Colin Kerry, a former friend of his, had a bit of a grudge against him and had reason to cause him harm (page 120). He confirmed however that he stopped being friends with Mr Kerry in about 2007, although he was not sure (of the date), but from 2007 Mr Kerry wasn’t coming around to his place (page 154).

[37] The accused was challenged about Claude Taylor having cleaned up viruses on his desktop but rejected that and rejected the proposition that a photograph from his 60th birthday in 2007 could be on the desktop computer and further, did not accept that his computer was working after 2007 and in 2008 (page 125 and 126).

[38] He did accept that he had copied beastiality images onto the USB flash drive from his desktop computer (page 126) but did not accept that beastiality images

copied to the USB from the desktop computer occurred on 16 December 2008 (page

127).

[39] He was asked whether he accessed images from the internet which he accepted. He also confirmed that he would shift documents or images to “My Documents” (page 129) and that he would save information (page 132-134) and also acknowledged that he had taken the other hard drive out of the desktop on occasion (page 137).

[40] He did not accept that it would have been impossible for the copied information to be on the hard drive that the police seized unless that hard drive had been working (page 143).

[41] The accused was challenged about purported previous admissions to Detective Cavanagh about having seen images of children and child pornography and purportedly earlier admitting saving such images, which he denied in Court. He agreed it was a coincidence that a folder contained the name “Rod”.

Crown Case

[42] Ms Clark submitted that the Court should put the accused’s evidence to one side and consider the cumulative effect of the circumstantial evidence from the Crown witnesses to reach the conclusion that the accused was guilty of counts 1 and

2.

[43] She referred to a number of matters including that the hard drive TCR.1 was found in the physical custody of the accused and was still plugged in at the time of

the search warrant although the accused said that it had not been operational since

2006.

[44] The Crown submitted that the accused had opportunity to remove the hard drive with the operating system between 27 July 2008 and 29 July 2008, having been alerted to possible police interest as a result of a call from Claude Taylor and did so. The Crown relied on the forensically examined hard drive TCR.1 which was found to contain numerous files shown in Exhibit 2 (pages 10 and 11). The files were all user created and were not temporary internet files.

[45] The Crown relied on the accused’s personal gmail information being found in the same folder as some of the objectionable images, along with the accused’s personal photograph and a mixture of images including beastiality, child sexual images and adult pornography. Ms Clark noted that the accused had accepted that he downloaded beastiality and adult pornography images from the internet and saved those onto his computer and other devices. He also accepted he would move images and save them in “my documents”.

[46] Ms Clark relied on all of the folders, including the folders with the accused’s gmail and photographs having the same created date of 22 May 2008 and the timing of the copying of the objectionable images being within seconds or minutes of each other indicating that they had been copied as a group.

[47] The Crown also noted that there were six images in common on TCR.1 and the USB flash drive given to Mr Taylor by the accused, noting also that the accused admitted in evidence that he had seen child sexual images and child pornography before on his desk top. A submission made by the Crown was that the accused was

capable of carrying all of the steps required to download, save and copy the files onto TCR.1.

[48] The Crown submitted that the accused could not be telling the truth about the computer not being operational when forensic evidence confirmed otherwise and that the Court should put aside the accused’s evidence and consider the cumulative effect of the circumstantial evidence from the Crown to reach a conclusion that the accused was guilty of counts 1 and 2.

Defence position

[49] The defence relied on the evidence from the accused that the desk top with the removable hard drive was inoperable since at least December 2006 when the accused purchased a replacement laptop along with the accused’s denial that he had never saved or attempted to store in any way the child pornography images described.

[50] The defence position was that essentially anyone with a functioning computer with an operating system and spare hard drive bay, may have accessed/downloaded images to the hard drive containing the objectionable child pornography images in question. Mr Hall also noted that the computer itself, which the accused said was inoperable at the relevant time was also not protected by either a password or firewall.

[51] The defence relied on the accused saying that the computer had ceased to operate as a result of a virus attack and while acknowledging that Mr Langille had re-assessed his initial opinion noted that his initial opinion was to the effect that it

was not outside the realm of reasonable possibility that certain viruses might download objectionable files onto the computer.

[52] The defence position was also that the accused had advised that persons including persons who had a grudge against him had had access to the desk top computer (and by inference may have set up the relevant folders and loaded them with child pornography images).

[53] Mr Hall submitted also that one might have expected that had an accused good cause to suspect the impending exercise of a police search warrant, that an accused might dispose of any hard drive containing objectionable images that he knew about (and had not).

[54] The defence submission was that the two charges had not been proved

beyond reasonable doubt as to the accused’s possession of the objectionable images.

Decision

[55] The accused’s account of other persons using his computer (and by inference being responsible for the objectionable images on it) on analysis did not appear credible. The two persons nominated by him on his own evidence would not have been users of the computer at the time the images subject to counts 1 and 2 were created, being 22 May 2008.

[56] The evidence of the accused also suggested that he was able to download images from the internet, save those images and create folders and move them around. The accused was unable to provide any credible explanation as to how

personal gmail messages, photographs identified as the accused of his 60th birthday in 2007 along with a folder “Rod Pre” found in “my pictures” containing pornographic images were in a folder Mr Langille said had a created date of 22 May

2008 indicating the folder was created in that location on that date. The accused’s evidence that the computer had been inoperable since 2006, in light of the forensic evidence and the way in which the accused’s work station was set up as shown in the photographs taken when the warrant was executed at his home, was not credible.

[57] I reject the accused’s account that the work station was inoperable since 2006 and reject the accused’s account that he had nothing to do with the files that were user created on 22 May 2008.

[58] The Crown case had compelling forensic evidence of Mr Langille who was not shaken in cross-examination.

[59] By examining the content on the computer hard drive, Mr Langille was able to ascertain that it contained gmail messages with the user name of Rodney De La Tour, as well as finding photographs identified as the accused in the folder, “My Pictures My 60th”. In that same folder a folder named “Rod Pre” was found containing pornographic images of children. The forensic analysis was that all of the files were user created and that the folder and its contents had a created date of 22

May 2008 which indicated the folder was created at that location on that date. The observations of Constable Malloy as to the set up of the work station with the desktop plugged in and its layout appeared more consistent with the desktop being in an operable state. That was supported by the evidence of Claude Taylor, who at least

four to five months before the warrant was executed, had cleared the desktop of viruses (although he acknowledged that his memory was quite bad).

[60] The evidence of Mr Langille was also that on forensic analysis, no malware was found on the hard drive TCR.1 (that is there was an absence of viruses).

[61] The accused also made statements to Detective Constable Cavanagh and some of the comments in those statements indicated an admission to, at the very least viewing the objectionable images however on my assessment, an acknowledgement that some of the images were saved by the accused. The statement was taken on 28

August 2009. The specific question to the accused was:

There’s a user created folder in My Pictures called “Rod Pre” that contains a large number of images showing sex, oral sex and digital penetration of children ranging in age from approximately five to early teen, tell me about that?

Accused Yeah.

Officer in Charge Did you save those images? Accused No.

Officer in Charge What do you mean by, “yeah”. Accused I know I looked at them. Officer in Charge Tell me about that.

Accused Just when you are on the porn sites. Officer in Charge Child porn sites?

Accused No, porn sites in general. All sorts come up.

Officer in Charge As I said, these images have been saved onto your computer. Did you save these images and videos after viewing them?

Accused Some of them yeah.

[62] I am satisfied that there is a compelling circumstantial case against the accused such that I am satisfied beyond reasonable doubt that he had possession of the objectionable images in counts 1 and 2, in that he had actual control, that he knew what it was that he controlled, that he showed that he intended to exercise control and that he voluntarily possessed the images. In my view the circumstantial evidence clearly shows that the accused was in possession.

[63] This was also clearly without lawful authority or excuse and clearly as the accused was in possession he knew or had reasonable cause to believe that the publication was objectionable, the objectionable nature of the images being accepted. I am satisfied that the Crown have proved counts 1 and 2 beyond reasonable doubt and convictions are entered.

D C Clark

District Court Judge

Solicitors: