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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: AARON JOSEPH HUTTON AND THE QUEEN [2018] NZHC 662
Case: [2018] NZHC 662
Decision Date: 12 April 2018

CaseChat Overview and Summary

Aaron Joseph Hutton appealed against a decision by Judge Cunningham to refuse disclosure of information relating to a surveillance device warrant and the application for a search warrant. Hutton has been charged with one count of dealing in people under 18 years for sexual exploitation and 15 counts of possession of objectionable material, namely child pornography. Hutton sought disclosure of the application for the search warrant and the electronic records of the device, which was used to identify the IP address of the computer being used by a person using the profile called “Kiwipedo” on a hidden site on the dark web. The issue before the Court was whether the information was properly withheld on maintenance of the law and international relations grounds.

The Court found that the District Court should have treated Hutton’s application as an application for disclosure from the prosecutor, but this procedural misstep was immaterial as the issue for the Court was 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. The Court held that the Judge was not required to view the original complete printout and was entitled to accept the investigator’s explanation of the redactions. The two grounds relied upon by the DIA in the present case to withhold the redacted material were of long-standing importance to the rule of law. There was 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 was also important as offenders were often very aware of the possibility of detection by law enforcement agencies. The Court found that disclosure of the redacted material was not necessary to ensure that Hutton could adequately defend the charges.

The appeal was dismissed.

Orders