Deliwala-Gedara v The Queen - [2021] NZCA 688

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.

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REASONS OF THE COURT

(Given by Goddard and Woolford JJ)

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]
[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].
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

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

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

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

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

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.
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…

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

Case: [2021] NZCA 688
Decision Date: 15 December 2021 at 11.00 am

CaseChat Overview and Summary

In the matter of Deliwala-Gedara v The Queen, the appellant faced charges relating to possession of objectionable publications. The dispute centred on whether the Crown was permitted to present additional evidence, specifically reports from the Office of Film and Literature Classification (OFLC), after the closure of their case. The application was made pursuant to section 98 of the Evidence Act. The High Court of Australia was tasked with determining the admissibility of these reports.

The central legal issue was whether the Judge correctly exercised discretion under section 98(1) of the Evidence Act to allow the Crown to introduce the OFLC reports. The appellant contested the Crown’s application, arguing against the admissibility of the reports. The court needed to assess whether the further evidence met any of the criteria specified in subsections 98(3) and 98(4) of the Act, particularly if it was relevant to a formal matter, arose out of the defence's conduct, or was necessary in the interests of justice.

The High Court found that the Judge’s decision to admit the OFLC reports was correct. The court reasoned that the reports pertained to a purely formal matter, as they confirmed the classification of the videos as objectionable, a fact the appellant did not dispute. The Judge noted that the appellant had conceded the objectionable nature of the videos through a section 9 admission. The detailed reports were deemed necessary to explain the content of the videos, which were described in the charges as depicting and promoting the exploitation of children and young persons for sexual purposes, among other things. The court concluded that the interests of justice required the admission of the OFLC reports to provide a clearer understanding of the evidence against the appellant.

The final orders of the court affirmed the decision of the trial Judge to admit the OFLC reports as evidence. The court held that the reports were relevant and necessary for the trial, thereby upholding the Judge's discretion under section 98 of the Evidence Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.… 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. 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. 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”. 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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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