Deliwala-Gedara v The Queen - [2021] NZHC 570

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-000096

[2021] NZHC 570

BETWEEN
SENITH DEELAKA MUNASINGHE DELIWALA-GEDARA

Appellant

AND

THE QUEEN

Respondent

Hearing: 24 February 2021

Appearances:

A S Olney for Appellant

D T E Moore and J Gardener for Respondent

Judgment:

19 March 2021

JUDGMENT OF GENDALL J

This judgment was delivered by me on 19 March 2021 at 3 p.m. pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DELIWALA-GEDARA v R [2021] NZHC 570 [19 March 2021]

Introduction

[1] Following a judge-alone trial before Judge Hobbs in the District Court the appellant, Mr Deliwala-Gedara, was found guilty and convicted on 13 charges under s 131A(1) of the Films, Videos, and Publications Classification Act 1993.1 He appeals those convictions on the basis Judge Hobbs:

(a)Incorrectly admitted into evidence a DVD interview given by him.

(b)Incorrectly gave leave to the Crown to adduce further evidence after the Crown had closed its case.

(c)In the absence of direct evidence, improperly drew an inference that Mr Deliwala-Gedara had viewed the publications that were the subject of charges 5, 6, 9 and 10, and, therefore, had reasonable grounds to believe they were objectionable.

Background

[2]Mr Deliwala-Gedara arrived in New Zealand from Sri Lanka in 2015.

[3] On 27 August 2018 a search warrant was executed, permitting police to search Mr Deliwala-Gedara’s residence. The suspected offences recorded in the search warrant application included blackmail and offences involving objectionable publications. Mr Deliwala-Gedara’s laptop was seized.

[4] Mr Deliwala-Gedara was arrested on the blackmail charge and accompanied police to the police station. At the police station he gave a DVD interview.

[5] Subsequent forensic analysis of Mr Deliwala-Gedara’s laptop revealed objectionable publications. Charges were laid in respect of these findings. The blackmail charge was dismissed.

1 R v Deliwala-Gedara [2020] NZDC 21197.

[6] Mr Deliwala-Gedara proceeded to judge-alone trial and was found guilty on 13 charges relating to the objectionable publications.

Principles on appeal

[7] This Court may only allow an appeal against conviction if satisfied, in the case of a judge-alone trial, that “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.”2 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3

[8] The appeal proceeds by way of rehearing and this Court is required to form of the facts.4 If this Court reaches a different view on the evidence, it follows the trial judge necessarily will have erred and the appeal must be allowed.5 The onus is on the appellant to show that an error occurred.

Admission into evidence of Mr Deliwala-Gedara’s DVD interview

[9] On 13 October 2020, Judge Hobbs ruled Mr Deliwala-Gedara’s DVD interview was not improperly obtained…

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] NZHC 570
Decision Date: 19 March 2021

CaseChat Overview and Summary

The appeal in Deliwala-Gedara v The Queen concerns the conviction of the appellant, Mr Deliwala-Gedara, on 13 charges under s 131A(1) of the Films, Videos, and Publications Classification Act 1993, which relate to the possession of objectionable publications. Mr Deliwala-Gedara argues that his convictions should be quashed on the basis that the District Court judge made several errors in the trial process, including the admission of evidence, the allowance of further evidence after the Crown had closed its case, and the drawing of improper inferences from the evidence. The High Court of New Zealand was tasked with determining whether the District Court judge's decisions constituted significant errors that resulted in a miscarriage of justice.

The High Court first considered whether the DVD interview given by Mr Deliwala-Gedara was improperly obtained and if its admission into evidence was justified. The appellant argued that he was not properly cautioned about the charges related to objectionable publications before giving the interview, while the Crown maintained that he was aware of the jeopardy he faced. The Court found that while the police did not specifically caution Mr Deliwala-Gedara about the objectionable publication charges, the failure to do so was a technical breach rather than a deliberate or reckless act. The Court held that the evidence was relevant and probative to the Crown's case and that excluding it would not be proportionate to the impropriety.

Next, the Court examined whether the District Court judge erred in permitting the Crown to present further evidence after closing its case. The Crown sought to adduce reports from the Office of Film & Literature Classification, which confirmed the objectionable nature of the videos in question. The defence argued that this evidence should not have been admitted as it addressed an element of the charge that had not been sufficiently proven. However, the Court found that the reports could be considered a purely formal matter, and their admission was in the interests of justice, as the content of the videos was not seriously in dispute.

Finally, the Court assessed whether the District Court judge improperly inferred that Mr Deliwala-Gedara had viewed the four unopened objectionable publications. The appellant argued that there was insufficient evidence to support this inference, while the Crown maintained that the totality of the evidence justified the inference. The Court concluded that considering the appellant's control over the laptop and the presence of the files in the same folder as viewed videos, it was reasonable for the judge to infer that Mr Deliwala-Gedara had viewed the unopened videos or had reasonable cause to believe they were objectionable.

In conclusion, the High Court found no significant errors or miscarriage of justice in the trial process and dismissed the appeal. The convictions of Mr Deliwala-Gedara on the 13 charges under s 131A(1) of the Films, Videos, and Publications Classification Act 1993 were upheld.

Orders