Hutton v The Queen

[2018] NZCA 419

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1. Hutton v R

1. Court of Appeal  CA203/2018; [2018] NZCA 419 11 September; 10 October 2018

   Kós P, Asher and Gilbert JJ

   Criminal practice and procedure – Disclosure – Surveillance device warrant –

15 Seeking full disclosure of warrant and information received from surveillance device – Child pornography – Dark web – Warrant containing confidential investigation techniques – Need to preserve confidentiality – Ability of law enforcement agencies to use techniques in future – Whether disclosure likely to prejudice foreign agencies entrusting information in confidence to the New

20 Zealand Government – Ability of defendant to mount effective defence – Balancing exercise – Whether disclosure of redacted parts with conditions appropriate – Criminal Disclosure Act 2008, ss 6, 8, 13, 13(1), 13(2), 16, 16(1)(a), 16(1)(g), 29, 29(2), 29(3), 30, 30(1)(b) and 30(2) – Criminal Procedure Act 2011, s 223(3) – Evidence Act 2006, s 7(3) – High Court

25 Rules 2016, r 8.7 – Interpretation Act 1999, s 33 – New Zealand Bill of Rights Act 1990, s  21.

Mr Hutton faced one charge of dealing with a person under the age of 18 years for the purposes of sexual exploitation of that person, specifically a female child aged seven years, and 15 charges of possession of objectionable material,

30 namely child pornography. He was awaiting trial. In this appeal, he sought disclosure of material containing confidential investigation techniques.

Mr Hutton was charged following a covert internet investigation by the Department of Internal Affairs (DIA). The DIA investigator communicated on the   internet   with   a   person   using   a   profile   called   “Kiwipedo”.    The

35 communications were on an encrypted area of the internet known as the “dark web”, which could only be accessed with special software. Criminals, including those who had a sexual interest in children, could create hidden services in the dark web. The DIA sought a surveillance device warrant to use a device to locate  the  person  who  was  using  the  Kiwipedo  profile.  The investigators

40 wanted to use software to send what was known as a “beacon”, which was an image or signal that could be placed within a document. The beacon could report back that the document had been opened, and importantly could provide the IP address of the computer that received the image. A surveillance warrant was granted. A beacon was then placed within a document and sent by an

45 investigator to Kiwipedo. This provided the investigators with the IP address used by Kiwipedo, which   would   otherwise   have   been   concealed.  DIA investigators were then able to determine via the internet service provider the physical location associated with the IP address, which the Crown said was Mr Hutton’s place of work. The police and the DIA, after using the beacon,

50 executed a search warrant at Mr Hutton’s workplace. It was alleged that a forensic  examination  of  Mr  Hutton’s  work  computer  revealed  that     the

1. Court of Appeal  [2019]

Kiwipedo profile was used on that computer. Also located…