Deliwala-Gedara v The Queen
[2021] NZHC 570
•19 March 2021
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 and was admissible as evidence.6 His Honour considered, if he was wrong in that conclusion, the exclusion of the evidence was not proportionate to the impropriety.7
[10] Central to this finding and to this ground of appeal, is the following chronology of events:
(a)On 27 August 2018 police visited and searched Mr Deliwala-Gedara’s residence. His laptop was seized.
2 Criminal Procedure Act 2011, s 232(2)(b).
3 Section 232(4).
4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
5 At [38].
6 R v Deliwala Gedara [2020] NZDC 21565.
7 Referring to Evidence Act 2006, s 30(2)(b).
(b)Mr Deliwala-Gedara went to the police station where he underwent a DVD interview. He was advised he was under arrest for blackmail. He was cautioned and advised of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA).
(c)He waived his right to silence and to speak with a lawyer.
(d)In the following weeks forensic analysis of the laptop revealed the objectionable publications. Charges were laid.
Appellant’s submissions
[11] Mr Deliwala-Gedara adopts the position that the DVD interview was obtained in breach of his rights under s 23(1) NZBORA. It is submitted Mr Deliwala-Gedara was given his rights in respect of the blackmail charges, but not in respect of the objectionable publication charges on which he was later charged and tried. On his behalf it is suggested Mr Deliwala-Gedara waived his rights to legal advice and to silence in relation to the blackmail charge only.
[12]The District Court Judge said:8
[25] With the knowledge that he was being charged with blackmail by electronic means the defendant would have been aware that his laptop would have been the focus of the inquiry and he chose to freely answer questions in relation to his laptop and its use.
[13] Mr Olney, counsel for Mr Deliwala-Gedara, submits there was no proper basis for this assessment. Nor, he says, was there a basis to conclude Mr Deliwala-Gedara understood he was in jeopardy of charges of possessing objectionable publications. Critically, Mr Olney maintains, this was because Mr Deliwala-Gedara was not cautioned about these charges.
[14] In support of this submission, Mr Olney says the alleged blackmail communications took place before Mr Deliwala-Gedara came to New Zealand, and a
8 R v Deliwala Gedara, above n 6.
number of years before he purchased the laptop. He says Mr Deliwala-Gedara’s knowledge was that the laptop was irrelevant to the blackmail charge.
[15] It is apparent here that Police had suspected Mr Deliwala-Gedara of committing objectionable publication offences and obtained the search warrant on the basis of this suspicion. Mr Olney says, however, that Mr Deliwala-Gedara was not aware of this suspicion, nor was he told that his laptop was being examined for evidence of this offending. In his submission, the basis of the statement given was narrowly confined to the blackmail charge. Yet, it does seem Mr Deliwala-Gedara was asked questions about pornography on his laptop.9
[16] It is also contended here that the exclusion of the DVD evidence would be proportionate to the impropriety that has occurred.10 Mr Olney says this assessment takes account of Mr Deliwala-Gedara’s vulnerability as a relatively young person, recently arrived into New Zealand, and for whom English is not a first language.
Respondent’s submissions
[17] The Crown position here is that the evidence was not improperly obtained and Mr Deliwala-Gedara understood the substance and scope of the jeopardy he faced.
[18] Mr Moore, counsel for the Crown, refers to portions of evidence provided by Detective Howard, including that he discussed “his right to consult a lawyer; and, what happens to property seized by police with a search warrant.” It is submitted Mr Deliwala-Gedara knew of the police interest in his laptop, and knew that it had been seized as part of the search warrant.
[19] The Crown says there was no change of tack.11 Rather, the investigation into Mr Deliwala-Gedara’s conduct morphed over time. It was only after the laptop was inspected that the standalone objectionable material was found. Mr Moore says Mr Deliwala-Gedara was clearly on notice as to the nature and type of events at issue.
9 These passages are recorded in Judge Hobbs reserve decision, R v Deliwara-Gedara [2020] NZDC 21197 at [15] and [16].
10 With reference to Evidence Act, s 30(2)(b).
11 Distinguishing R v Taylor (No 4) HC Wellington CRI-2004-091-4321, 25 July 2006.
[20] The Crown position is essentially that Mr Deliwala-Gedara has conflated police obligations in regard to detaining a suspect, with their obligations when questioning, referring to the following sequence of events:
(a)Mr Deliwala-Gedara was appropriately detained when arrested at his house, there being good cause to suspect that he had committed an imprisonable offence.12
(b)He was told of the reasons for his arrest, being the allegation of blackmail.13 He was given his rights.
(c)He voluntarily gave a DVD interview. At the outset, he was again given his rights in accordance with NZBORA.
[21] Mr Moore suggests that, at the time of interviewing a suspect, there is no obligation on the Police to specify every potential charge with which a suspect may be charged. Often police are still obtaining evidence. He submits the waiver of the right to silence is not tied solely to the offence that has been specified.
[22] Even if this Court is to come to the conclusion that the evidence here was improperly obtained, Mr Moore maintains it would pass the balancing test in s 30(2)(b) Evidence Act. The intrusion was minor and came from a change in circumstances; the breach was technical; the evidence was important to the Crown case; and the offence was serious.
Discussion
Was the evidence improperly obtained?
[23]Section 23(1) NZBORA provides:
12 Crimes Act, s 315.
13 Section 316(1).
23 Rights of persons arrested or detained
(1)Everyone who is arrested or who is detained under any enactment—
(a)shall be informed at the time of the arrest or detention of the reason for it; and
(b)shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
…
[24] The onus on the police here was to ensure Mr Deliwala-Gedara knew the extent of the jeopardy he faced. He must have sufficient information to be able to make an informed decision as to whether to speak to counsel. Therefore, he must know the “real substance of the likely allegations” at the point of interview.14 As an accused person, Mr Deliwala-Gedara must “know, or at least suspect, the general nature and seriousness of the risk [faced]”.15
[25]In Lisiate v R the Court of Appeal said:16
[15] The requirements for a waiver of the right to silence emerge from a number of cases.17 Essentially, they are that the suspect's waiver decision must be voluntary, informed and unequivocal. In the context of the right to silence, the term “waiver” is used in its common sense to mean relinquish or give up.
[26] Mr Deliwala-Gedara was given his rights in accordance with NZBORA prior to the DVD interview. However, it is clear here that at no point did Detective Howard mention that Mr Deliwala-Gedara was in jeopardy of objectionable publication charges. The Crown says, at this point, the laptop had not yet been examined and the information pertaining to the charges was no yet available. However, I do not consider it follows that the police were not required to caution Mr Deliwala-Gedara on those charges.
14 R v Z (CA318/07) [2007] NZCA 401 at [20]. Citations omitted.
15 R v Taylor (No 4) HC Wellington CRI-2004091-4321
16 Lisiate v R [2011] NZCA 170.
17 R v Ormsby CA493/04, 8 April 2005 at [18] - [20] and R v Rogers [2006] 2 NZLR 156 (CA) at [62].
[27] The suspected offences on which the application for the search warrant was based were blackmail,18 possession,19 making,20 and distributing an objectionable publication,21 and accessing a computer without authority.22 The search warrant application stated that the Police had reasonable grounds to suspect these offences had been committed.
[28] Having reviewed the transcript of the DVD interview, it is apparent Mr Deliwala-Gedara freely answered questions in relation to his laptop and his use of it. However, in my view, there is no basis to conclude Mr Deliwala-Gedara knew or suspected the general nature and seriousness of the risk that he faced with respect to the objectionable publications. He was arrested in relation to suspected blackmail and only cautioned in relation to that charge. By a fine margin, I am satisfied, on the balance of probabilities, that Mr Deliwala-Gedara was not cognisant of the jeopardy he faced in relation to the possession of the objectionable publications.
If the evidence was improperly obtained, should it be excluded?
[29] Having reached the tentative view that the DVD interview was improperly obtained, I must go on to consider whether the exclusion of the evidence would be disproportionate to the impropriety. This involves conducting an assessment with reference to the factors in s 30(3) Evidence Act.
[30] It is clear the impropriety here was not deliberate, reckless or done in bad faith. In my view, the failure to caution Mr Deliwala-Gedara on the objectionable publication charges was a technical breach. The police were not on a “fishing expedition”. There is no evidence the police were using the blackmail charge as a pretence to uncover further offending. I consider the intrusion was minor.
[31] I am satisfied too that the evidence was relevant and probative to the Crown case. Namely, it established that Mr Deliwala-Gedara obtained the laptop sometime
18 Crimes Act, s 237,
19 Films, Videos, and Publications Classifications Act, s 131,
20 Section 124.
21 Section 124,
22 Crimes Act, s 252.
towards the end of 2016; he owned the laptop; nobody else used it; and that it contained pornographic videos downloaded from the internet.
[32] Given the nature of the content found, the offending was serious. The files related to sexual exploitation of children.
[33] In the circumstances, I am satisfied Judge Hobbs did not err in concluding exclusion of the evidence was not proportionate to the impropriety here.
Conclusion
[34]This ground of appeal accordingly fails.
Admission of further Crown evidence after closing
[35] Following the parties closing their respective cases, the Crown made an application under s 98 Evidence Act to adduce further evidence.23 The evidence in question was of two reports completed by the Office of Film & Literature Classification (the reports) in relation to the objectionable publications at issue in the trial. The reports confirmed the classification of the videos as objectionable and contained detail on the nature and content of the videos.
[36] The defence, as I understand it, made a concession that the publications at issue were objectionable within the meaning of the Films, Videos and Objectionable Publications Act. This concession was formalised and admitted as evidence pursuant to s 9 Evidence Act.
[37] The Crown position was simply that the admission of the reports was purely a formal matter, to confirm that the publications in question were classified as objectionable. The Crown said the interests of justice required the admission of the reports to provide further detail and explanation of the videos. It was noted, these matters were not disputed by the defence.
23 R v Deliwala Gedara [2020] NZDC 20958.
[38] The defence said the Crown knew that proof Mr Deliwala-Gedara knew, or had reasonable cause to believe, the publications were objectionable may be at issue. On this basis in the District Court the defence opposed the admission of the reports. This was on the ground that the reports would, in effect, fill a gap in the Crown evidence. Judge Hobbs rejected this submission.
[39] The Judge’s view was the “reports do nothing more than confirm what the defence accept: namely, that the videos in question are objectionable. Therefore, the further evidence relates to a purely formal matter.” 24 His Honour considered it was in the interests of justice that, as the fact finder, he have evidence of the basis upon which the videos were deemed to be objectionable.
Appellant’s submissions
[40] Mr Deliwala-Gedara’s position is that adducing the reports in evidence addressed an element of the charge, namely, that Mr Deliwala-Gedara knew, or had reasonable grounds to believe, that the publications were objectionable.25 Mr Olney suggested that, without any evidence of what was depicted in the videos, the Crown could not establish this element. He says the Crown application to adduce the reports was in response to Judge Hobbs making this observation during the Crown closing submissions.
[41] It is submitted it was not in the interests of justice to allow the reports to be adduced as evidence. Mr Olney maintains that in the circumstances here, the Crown had not addressed the knowledge element of the charge prior to closing, and earlier had advised the defence that no exhibits other than a forensic expert report were relied upon. He says in these circumstances the defence was entitled to proceed on the basis that this additional element of the charge would go unaddressed.
Respondent’s submissions
[42] The Crown says Judge Hobbs did not err here in admitting the reports. They were a purely formal matter and it was in the interests of justice to admit them.
24 At [15].
25 Films, Videos, and Publications Classification Act 1993, s 131A.
[43] Mr Moore says it was common ground the videos were objectionable, and that there was no dispute about what the videos depicted. As such, the nature of the images had become a formality and not seriously in dispute.
[44] He contends it would simply be a windfall for Mr Deliwala-Gedara to be able now to successfully defend the charges on a point that was not disputed throughout the trial.
Discussion
The law
[45] The Crown has confirmed that following the hearing, the objectionable publication videos were not played for the District Court. It might be said at one level that, therefore, no evidence was adduced to prove the content of the videos. It was not until after the closing of the Crown case that, as I have said, it sought to adduce the reports.
[46] A party may not adduce evidence after the closing of the party’s case, except with permission of the Judge. Relevantly, s 98 Evidence Act 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.
(5)The Judge may grant permission under subsection (1),—
…
(b)in any other proceeding, at any time until judgment is delivered.
[47] Here, the application to adduce the reports was made following closing addresses by both parties, but before the reserved decision was delivered.26 Accordingly, s 98(5)(b) gave the District Court Judge jurisdiction to allow the evidence to be admitted, if satisfied of the other elements under the section.
[48] The term “purely formal” in s 98(3)(a) is not defined in the Act. In Nathan v Police Cull J noted this s 98(3)(a) was a codification of recognised categories of exception in case law prior to the enactment of the Evidence Act.27 Her Honour referred to the Court of Appeal decision in R v Timutimu, where the Court said:28
… the Court has an inherent jurisdiction to allow the Crown to call further evidence at a later stage. The discretion is to be used sparingly and in such a way as to strike the appropriate balance of justice between the Crown and the defence. The two recognised categories of exception are, first, situations involving purely formal issues and, second, where issues have arisen unforeseeably or ex improviso. The discretion will be exercised rarely outside these two exceptions: R v Francis (1990) 91 Cr App R 271 at 275-276
[49] In my view, there is a reasonable argument in all the circumstances here that the reports are a purely formal matter. Had the reports simply stated the publications were objectionable, I consider this would unequivocally have supported the view that they were purely formal. That classification clearly was not in dispute. Here, the reports did go on to contain some description of the content of the videos. In my view overall however, the Judge did not err in finding the reports could be largely seen as purely formal here.
26 R v Deliwala Gedara, above n XX, at [1].
27 Nathan v Police [2020] NZHC 3452 at [36].
28 R v Timutimu CA23/6/06, 30 November 2006 at [12].
[50] And, in any event, if I may be wrong on this conclusion, there is a residual discretion to admit evidence if it is in the interests of justice.29 This discretion must be exercised sparingly outside of the s 98(3) exceptions.30 Prejudice to the defence,31 and relevance of the evidence to fundamental issues are relevant considerations.32
[51]In Nathan v Police Cull J referred, however, to the Court of Appeal decision in
S v R,33 saying:34
… the Court of Appeal found that where the failure to call the evidence earlier or the reason that the prosecution now needs to call further evidence is at the hands of the prosecution itself, as it was in that case, it may not be in the interests of justice to allow the evidence to be adduced
[52] In the present case Mr Moore contends, as I note above, that notwithstanding comments such as those of the Court of Appeal outlined at [51], it would be a windfall here for Mr Deliwala-Gedara to be able to successfully defend the charges on a point that was not disputed throughout his trial, namely that the videos were objectionable.
[53] In response, Mr Olney suggests that the purpose of admitting the reports was not to satisfy an ancillary formal requirement,35 but it was to establish a substantive element of the offence. Addressing that aspect, I turn now to those elements of the objectionable publication charges. These require specifically the Crown here must establish:
(a)Mr Deliwala-Gedara was in possession of the publications in question; and
(b)the publications were in his possession without lawful authority or excuse; and
29 Evidence Act, s 98(4). See Pepene v R [2011] NZCA 497 at [51].
30 R v Timutimu CA236/06, 30 November 2006 at [12] citing R v Francis (1990) 91 Cr App R 271 at 275–276.
31 Pepene v R, above n 31, at [55];
32 At [54].
33 S (CA481/2018) v R [2019] NZCA 169.
34 Nathan v Police, above n 27, at [46].
35 Pursuant to Evidence Act, s 98(3)(a).
(c)he knew or had reasonable cause to believe the publications were objectionable.
[54] There is no issue with requirements (a) and (b) above. Judge Hobbs, in his reserved decision, correctly noted too that it is the Crown who must prove the knowledge element of the charge.36 His Honour then considered the substantive descriptions of the videos relating to the nine charges for which there was evidence before him that the files had been opened.37 Judge Hobbs said:38
[27] Whether the defendant had reasonable cause to believe the video files in question were objectionable in that they promoted or supported the exploitation of children or young persons for sexual purposes involves an objective test. Having considered what is depicted in each of these videos I am in no doubt that the defendant had reasonable cause to believe that each of the nine videos he viewed was objectionable bearing in mind they depicted the obvious exploitation of children for sexual purposes.
(emphasis added)
[55] As I understand the position, Judge Hobbs did not himself view the videos. Upon reflecting on his Honour’s decision, it appears instead he relied principally upon other matters which included in part the substantive content of the reports to inform the objective test of whether Mr Deliwala-Gedara had reasonable cause to believe the videos were objectionable.
[56] It is true, as I understand it here, that the reports were available to the Crown in the District Court prior to it closing its case against Mr Deliwala-Gedara. It did not seek to admit them. Arguably, this was a defect which the Crown sought to remedy following closing of the cases.
[57] In my view, however, at a general level and adopting the Court’s residual discretion, it was in the overall interests of justice to adduce this evidence after the closing of the case. The Crown, it is accepted, could have produced the reports prior to closing. Importantly, however, I accept from the parties that they all accepted, first, that the videos were objectionable and, secondly, and in any event, the content of the
36 R v Deliwara-Gedara, above n 1, at [2].
37 At [26].
38 At [27].
videos and what they depicted does not appear to have been in serious dispute. Of significance, too, was the essential defence advanced by Mr Deliwala-Gedara in his evidence at trial directed only at the argument that it was not him but another individual that downloaded such material, and that he had never seen the material before.
[58] And, if I may be wrong on this and it could be established there had been an error here, the question, on an appeal like this is directed to whether that error created a real risk that the outcome of the trial was affected.39 In my view, overall, Judge Hobbs did not err in admitting the reports following the closing of the party’s cases. It must follow, as I see it, that there is no real risk in this case the outcome of the trial was affected.
Conclusion
[59]This ground of appeal also fails and is dismissed.
Improper inferences
[60] Mr Logez, a forensic computer expert, gave evidence that nine of the 13 objectionable publications had been viewed. There was no evidence the other four of the 13 objectionable publications had been viewed.
[61] Judge Hobbs was satisfied, on the evidence of Mr Logez, that Mr Deliwala- Gedara was the user of the laptop and “had an active and significant interest in child pornography that extended over a period of time.”40 The four unopened videos were in the same folder as the files that had been viewed. In light of these circumstances, the Judge held it was reasonable to infer that Mr Deliwala-Gedara had viewed the remaining four videos.
39 Criminal Procedure Act, s 232(4).
40 R v Deliwara-Gedara, above n 1, at [31].
Appellant’s submissions
[62] Mr Olney submits it could not be inferred from the evidence, without any reasonable doubt, that Mr Deliwala-Gedara viewed the four remaining videos. In support of this submission he says Mr Logez could not find any evidence that the files had been opened or viewed.
[63] He argued too that R v Spark, relied on by Judge Hobbs, can be distinguished from the present case.41 There, Mr Spark’s computer drive was meticulously organised and there was extensive evidence of online chats with the complainants’ in the photos in issue.42
Discussion
[64] Mr Olney says the files could have been downloaded inadvertently, due to the download mechanism used. In light of the files not having been viewed, Mr Olney says the Crown failed to prove Mr Deliwala-Gedara had knowledge about the nature of the videos. In response, the Crown position is that the District Court Judge was entitled to infer from the totality of the evidence that Mr Deliwala-Gedara had knowledge that the content of those files was objectionable.
[65] Mr Deliwala-Gedara was in sole control of the laptop, which was password protected. He admitted downloading porn onto it. Further, the files were in the same folder as the videos that had been viewed.
[66] The Crown notes that files relating to charges 5, 6 and 9 were in the same folder as other objectionable materials for which there was evidence that they had been recently viewed. That folder was titled “11yearold_pussy”.
[67] Mr Moore says the fact the images were of child pornography was evidence that tended to show Mr Deliwala-Gedara had an interest in this kind of material and was therefore more likely to have viewed the remaining images, or have been aware of what they were likely to depict. I accept this submission.
41 R v Spark [2009] NZCA 345, [2009] 3 NZLR 625.
42 At [6]-[9].
[68] In my view, considering the totality of the evidence, the District Court Judge did not err in finding that Mr Deliwala-Gedara either viewed the videos, or had reasonable cause to believe they were objectionable.
Conclusion
[69]This ground of appeal is without merit and is also dismissed.
Result
[70] For all the reasons I have outlined above, I find that no significant errors have occurred here, nor that any miscarriage of justice has occurred otherwise because of any other factors. I conclude too that nothing that has been put before the Court on this appeal leads to the conclusion that the outcome of Mr Deliwala-Gedara’s trial was detrimentally affected or that it has resulted in the trial being unfair.
[71]This appeal is dismissed.
...................................................
Gendall J
Solicitors:
Adrian Olney, Barrister, Wellington
Luke Cunningham & Clere, Wellington
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