AARON JOSEPH HUTTON AND THE QUEEN

[2018] NZHC 662

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000465

[2018] NZHC 662

IN THE MATTER

of an appeal under the Criminal Disclosure Act 2008

BETWEEN

AARON JOSEPH HUTTON

Appellant

AND

THE QUEEN

Respondent

Hearing:

19 March 2018

Appearances:

R Hooker for the Appellant

Z Johnston for the Respondent

Judgment:

12 April 2018

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 12 April 2018 at 2:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Vallant Hooker & Partners, Auckland Crown Law Office

HUTTON v R [2018] NZHC 662 [12 April 2018]

[1]    Aaron Joseph Hutton has been charged with one charge of dealing in people under 18 years for sexual  exploitation under s 98AA of the Crimes Act  1961 and  15 sample charges of possession of objectionable material, namely child pornography, under ss 131 and 131A(1) of the Films, Videos, and Publications Classification Act 1993.

Factual background

[2]    Department of Internal Affairs (DIA) covert internet investigators started to communicate with a person using the profile called “Kiwipedo” when he made it known on a hidden site on the dark web1 that he wished to purchase a child to fulfil his sexual desires. Kiwipedo was using the Tor network2 to communicate with investigators.

[3]    Investigators obtained a surveillance device warrant from a District Court Judge to use a software programme to send a beacon3 to Kiwipedo to identify the IP address of the computer that was being used by him.

[4]    Emails containing a word document were then sent to Kiwipedo on three occasions. The word document was opened on two occasions. The IP address returned to investigators was registered to a commercial address in West Auckland. The Police investigators then executed a search warrant at the commercial address and located Mr Hutton. The Kiwipedo profile was found to originate from an HP computer on Mr Hutton’s desk. Also located on his computer was Tor access to a child pornography website, Playpen. Another search warrant was then executed at Mr Hutton’s home address. Subsequent analysis of an electronic hard drive in his bedroom found approximately 417 images of objectionable material, namely, child pornography.

1      The dark web is a part of the worldwide web that requires special software to access. Once inside, websites and other services can be accessed through a browser in much the same way as the normal web. However, some sites are effectively hidden in that they have not been indexed by a search engine and can only be accessed if you know the address of the site.

2      The Tor network aims to conceal its user’s identities and their on-line activity from surveillance and traffic analysis by separating identification and routing. It is an implementation of onion routing, which encrypts and then randomly bounces communications through a network of relays run by volunteers around the globe.

3      A web beacon is a transparent graphic image that can be used to report back if a document has been opened and the IP address of the computer that requested the image file.

[5]    Mr Hutton wishes to challenge the lawfulness of the surveillance device warrant and sought disclosure of the application for the search warrant and the electronic records of the device. A redacted version of the application and electronic data was provided to him with an explanation that to provide any further information would compromise the ability of law enforcement (both in New Zealand and overseas) to use the device in future. Further disclosure was firmly resisted by the investigators.

[6]    On 1 December 2017, Judge P A Cunningham refused an application for disclosure of further information. Mr Hutton now appeals against the decision of Judge Cunningham. The issue for this Court is whether the information was properly withheld on maintenance of the law and international relations grounds.

District Court hearing

[7]    In its submissions, the Crown summarised the District Court hearing as follows:

16.        A disclosure hearing was heard by Judge Cunningham in the District Court on the [3rd and 4th of] October 2017. Mr Stephen Waugh, senior investigator from the DIA gave evidence to explain why disclosure was resisted. He outlined the encrypted nature of the dark web and Tor network, how they can be used to obtain child sexual exploitation material, and how DIA investigators develop profiles in order to covertly communicate with possible offenders. Mr Waugh explained the deployment of the tracking device on a document that was sent to Kiwipedo: “We had placed the tracking device within a document and sent that document. And the tracking device, once the document was opened, then just sends back the IP address, that’s all it does.”

17.        Mr Waugh went on to explain why the DIA resisted disclosure of the electronic logs of the device: “The only way we can view the results of the tracking device is to actually view it within the tool that we’ve created. That’s the only way we can do it.” Instead, the data has been printed out and disclosed to Mr Hutton in a redacted form. The redactions are a series of code, which would only be understandable to someone who understood what to look for.

18.        Importantly, disclosure of the redacted code would reveal how the device worked. Mr Waugh explained disclosure of the redacted information would prejudice the investigation of offences, because:

There’s more information revealed but a lot of that information relates to how the tracking device works and, you know, its path through to the computer. That information is sensitive to the tool itself. Now, this is a unique law enforcement-developed tool that is used in New Zealand, it’s used around the world, and to reveal a lot of the

information from the read-out actually reveals how it works and so, therefore, we’re giving away information of the tracking device which then gives the offenders that we’re trying to pursue the ability to actually counter these tools by putting up mechanisms on their computer to block us so then we can’t find their IP address.

20.        Disclosure was also resisted on the ground that it would prejudice international relations. Mr Waugh explained the tool was used by law enforcement agencies in other parts of the world (United States, Britain, Europe, Australia), and there was an (unwritten) arrangement between those countries that information as to the workings of the device would not be disclosed. To provide the technical information about the workings of the device to anyone outside of law enforcement would breach those international agreements.

21.        Her Honour Judge Cunningham accepted Mr Waugh’s evidence and declined to order disclosure. In doing so, her Honour dismissed the challenge to Mr Waugh’s credibility mounted on Mr Hutton’s behalf. The issue was treated as one of non-party disclosure, as the device was used by the DIA (rather than the Police).

22.        Her Honour accepted the information could be withheld on the ground that disclosure would prejudice the maintenance of the law (s 16(1)(a) of the Act), and would prejudice relationships with overseas law enforcement agencies (s 16(1)(g)(ii) of the Act).

Procedural issues

[8]    Because the charging document was filed by the Police, the District Court treated Mr Hutton’s application as an application for disclosure from a non-party (DIA) under s 29 of the Criminal Disclosure Act 2008. The procedural formalities of a non-party disclosure hearing were, however, not followed.

[9]    With respect, the District Could should have treated Mr Hutton’s application as an application for disclosure from the prosecutor. Prosecutor is defined in the Criminal Disclosure Act as follows:

6        Interpretation

…

prosecutor means the person who is for the time being in charge of the file or files relating to a criminal proceeding; and includes—

(a)any other employee of the person or agency by whom the prosecutor is employed who has responsibilities for any matter directly connected with the proceedings; and

(b)any counsel representing the person who filed the charging document in the proceedings; and

(c)in the case of a private prosecution, the person who filed the charging document and any counsel representing that person

It is an inclusive definition, as opposed to an exclusive one. It is the DIA, not the Police, that investigates and initiates the prosecution of persons who possess and share child pornography. Mr Stephen Waugh, a DIA investigator, who gave evidence in the District Court described himself as the officer in charge of the case.

[10]   However, the procedural misstep is immaterial as the issue for the Court is whether the Judge was correct to permit the withholding of the information on the grounds set out in s 16 of the Criminal Disclosure Act. Section 16 relevantly provides:

16       Reasons for withholding information

(1)A prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if—

(a)disclosure of the information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or

…

(g)the disclosure of the information would be likely to prejudice—

(i)the security or defence of New Zealand or the international relations of the Government of New Zealand; or

(ii)the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any other country or any agency of such a government or any international organisation;

…

The same withholding grounds (s 16(1)(a) and (g)) are relevant whether the issue is one of non-party (s 29) or prosecutor disclosure (s 30).

Defence position

[11]   There are two issues according to the defence – whether the application for the search warrant accurately described the function of the software programme which was embedded in the Word document and whether the beacon was used in accordance with the terms of the search warrant or returned more information than just the IP address. The defence submits that if the function of the beacon was not accurately described to the Judge in the application for the warrant, then there are issues as to whether the search subsequently became unlawful. Similarly, if the beacon as inserted

in the Word document was not used in accordance with the terms of the search warrant or returned more information than just the IP address, then the defence submits that the search would again become unlawful.

Discussion

[12]   The difficulty for the defence is that it is unable to point to any material which suggests that the Judge who issued the warrant was misled by false or misleading information in the DIA application for a warrant. Nor is it able to point to any material which suggests that the beacon was used in breach of the terms of the warrant or that it returned information about the defendant, other than the IP address he was using. The defence application could colloquially be termed a “fishing expedition”.

[13]   The DIA did disclose a document which was a redacted form of what the beacon returned. The IP address is disclosed, but it is obvious that more information has been redacted. Mr Waugh gave evidence that the only way DIA could view the results of the beacon is to actually view it within the device that had been created. The redacted material was a series of codes which could be deciphered by someone with technical expertise. It related to how the beacon worked and its path through to the computer. If a person with technical expertise had knowledge of the series of codes, they could develop a blocking mechanism of some sort which would make the device ineffectual. The Judge accepted Mr Waugh’s explanation.

[14]   Defence counsel intends to submit to the Court that a device which locates the IP address and sends it back to the sender is not authorised by the Search and Surveillance Act 2012. I accept that without the redacted material the defence is unable to make submissions as to the working of beacon, but in my view, the defence can still advance the argument as it is accepted that the beacon in the present case did exactly that – it located and sent Mr Hutton’s IP address back to the DIA.

[15]   The defence also submits that it was the duty of the Judge to consider the document evidencing what the beacon returned in its entirety. It says that only by considering the original complete printout of the electronic returned information could the Judge properly determine whether the document had to be redacted to the extent

that it was. However, the Judge did not profess to have the technical expertise necessary to make sense of what Mr Waugh said was a series of codes.

[16]   Furthermore, there was no obligation on the Judge to view the original complete printout. All that was necessary was for the prosecutor to satisfy the Court of the grounds supporting the decision to refuse disclosure. As explained by the Court of Appeal in Edwards v R:4

This might involve, for example, the prosecutor giving the court a more detailed description of information at issue; or filing an affidavit from the police explaining the nature of the information; or, in some instances, submitting the information to the court for its consideration.

[17]   Section 27(2) also specifically recognises that in a non-party disclosure hearing the Judge has a discretion to view the non-disclosed material:

27       Non-party disclosure hearing

…

(2)The Judge may, if he or she considers it appropriate to do so, examine the information in the possession of—

(a)the person or agency from whom the information is sought; or

(b)any other person or agency who holds the information sought, or part of it.

…

[18]   I am therefore of the view that the Judge was not required to view the original complete printout and was entitled to accept the investigator’s explanation of the redactions.

[19]   The two grounds relied upon by the DIA in the present case to withhold the redacted material are of long-standing importance to the rule of law. There is a real public interest in withholding sensitive information relating to investigatory techniques, the disclosure of which would be likely to prejudice the investigation and detection of offences. The context of the present case is also important. Offenders are often very aware of the possibility of detection by law enforcement agencies. The person using the profile Kiwipedo discussed the need for encrypted connections,

4      Edwards v R [2012] NZCA 375 at [22].

veracrypt and “a good encrypted VPN”. He also requested a photograph of a naked child with a current newspaper expressing concern the person he was communicating with might be from a law enforcement agency. He may well have the technical expertise to utilise the redacted material to remain anonymous. There is a strong public interest in law enforcement agencies being able to circumvent the anonymity provided by the Tor network to identify possible offenders.

[20]   Co-operation with similar law enforcement agencies overseas is also essential for the DIA because of the all-pervasive nature of the dark web. Although there is no written agreement with overseas agencies about the release of the redacted material, I am of the view that the Judge was able to accept as obvious the prejudice that would be caused to the DIA if a device used by both New Zealand and overseas agencies was compromised through the release of the redacted material.

[21]   Finally, the defence submits that the Judge erred by failing to consider whether the information should be disclosed to a defence expert subject to an undertaking of confidentiality. I am, however, of the view that the Judge was able to reasonably conclude that disclosure to anyone outside of law enforcement was still risky.

[22]   In conclusion, I am of the view that disclosure of the redacted material is not necessary to ensure that Mr Hutton can adequately defend the charges. I am unable to see how it will help him in any way. There is no question that the beacon accurately located the IP address used by the HP computer on Mr Hutton’s desk from which the Kiwipedo profile had originated. Nothing returned by the beacon was utilised except for the IP address. It is pure speculation to suggest that the beacon may have unlawfully returned other material about the defendant.

[23]The appeal is dismissed.

Woolford J