Hutton v The Queen
[2018] NZCA 419
•10 October 2018
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Hutton v R
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
Court of Appeal [2019]
Kiwipedo profile was used on that computer. Also located on his work computer was evidence of access to a child abuse website known as “Playpen”. This was one of the largest known hidden services for child sexual imagery before it was shut down in 2015. When the search warrant was executed, other computers in the office were also of interest to the police. There was then a third 5 search warrant obtained and executed on Mr Hutton’s home address, which allegedly revealed a hard drive containing approximately 417 images of objectionable child abuse material.
In the District Court, Mr Hutton sought disclosure of the electronic records relating to obtaining the surveillance device warrant, the use under the warrant 10 of the beacon, and the electronic records of what was returned when the beacon
was used. The application for disclosure was opposed by the Crown. The District Court declined the application. Mr Hutton appealed that decision to the High Court. The appeal was dismissed. Mr Hutton sought and was granted leave to appeal to the Court of Appeal. 15
Mr Hutton sought full disclosure of the warrant application and the print
out of the electronic return from the beacon. The application and the return had both been provided, but parts were redacted. Mr Hutton sought access to unredacted versions. The Crown objected to unredacted disclosure, relying on
s 16 of the Criminal Disclosure Act 2008 (the Act). The Crown argued that to 20
provide any further information would compromise the ability of law enforcement agencies (both in New Zealand and overseas) to use the device in the future. The Crown had not suggested that there was anything wrong or inappropriate in the requests for disclosure, and had accepted a disclosure
obligation under s 13 the Act. The defence was entitled to obtain full disclosure 25
of information relating to the grant and use of a warrant, to discern whether an investigator had acted lawfully. However, the Crown opposed disclosure of the redacted parts under s 16(1)(a) of the Act and disclosure of those redacted parts with conditions under s 30.
Held: 1 In this case, all three search warrants were applied for by a DIA officer. 30 The DIA was the agency by whom the Police had been engaged, and it was the DIA that had initial responsibility for the proceedings. Both the DIA and the Police fell under the definition of “prosecutor”. This was not a non-party disclosure application, but an application for disclosure by the prosecutor under
the Act. Even if this was a non-party disclosure matter, a judge could refuse to 35
order disclosure if they were satisfied that any of the reasons for withholding information described in ss 16 or 18 of the Act, applied (see [22], [23]).
2 The word “satisfied” in s 30 of the Act did not import any onus. The Court, in considering whether it was “satisfied” under s 30 of the Act, would
take into account the context in which ss 16 and 30 arose, including the purpose 40
of the Act to promote fair, effective, and efficient disclosure of relevant information, as well as the right to receive information. In carrying out the balancing, the purpose of the proposed disclosure, and its potential helpfulness to the defence as best as it could be discerned, would be relevant to assessing
the public interest (see [34], [35]). 45
3 Importantly, there was nothing to show that there was anything untoward in the application for a surveillance warrant or in the four-line return that was obtained. There was nothing before the Court to cause concern about the integrity of the surveillance warrant application. Further, there was nothing to
indicate that Mr Hutton would not be able to mount an effective defence or 50
receive a fair trial without the disclosure of the redacted portions. The Court could not be satisfied that there should be disclosure of the redacted material with conditions under s 30 of the Act. Modifications to the conditions might make disclosure appropriate, but the risks associated with disclosure to any
outside expert seemed to be insurmountable (see [57], [58]).
4 Other agencies were involved in the use of the beacon technique. It was easy to see why cooperating organisations in other countries might be most concerned about disclosure outside the trusted New Zealand organisation. This engaged the related issue in s 16(1)(g)(ii); that disclosure would be likely to
10 prejudice the entrusting of information in confidence to the New Zealand Government by foreign governments or agencies. This could lead to an unwillingness to disclose useful investigation devices and techniques in the future. There might be occasions where the Crown might have to choose between disclosure and proceeding with the prosecution, but this was not one.
15 The lack of any indication that the redacted information would reveal any material helpful to the defence, and the certain damage to an important tool which enabled the investigation of a serious crime of this nature, tipped the balance clearly in favour of non-disclosure (see [60]).
Result: The appeal was dismissed.
Cases mentioned in judgment
Attorney-General v Otahuhu District Court [2001] 3 NZLR 740 (CA).
Bellette v R [2013] NZCA 467.
Cutfield v R [2013] NZCA 653.
Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745.
Iti v R [2011] NZCA 114.
R v A (CA255/2009) [2009] NZCA 380.
R v Leitch [1998] 1 NZLR 420 (CA).
R v Sullivan [2014] NZHC 1105.
S (CA712/2015) v R [2016] NZCA 448.Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.
Application
Mr Hutton sought disclosure of material containing confidential investigation techniques under s 30 of the Criminal Disclosure Act 2008.
RJ Hooker for the appellant.
SK Barr for the respondent.
Cur adv vult
The judgment of Kós P, Asher and Gilbert JJ was delivered by
ASHER J.
Introduction
[1] Aaron Joseph Hutton, the appellant, faces 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, namely child pornography. He awaits
trial. In this appeal he seeks disclosure of material containing confidential investigation techniques.
Mr Hutton’s computer had revealed allegedly incriminating material, following the execution of a surveillance device warrant. In the District Court Mr Hutton wishes to challenge the lawfulness of the issue of the surveillance device warrant which authorised the search. He has sought disclosure of the
electronic records relating to obtaining the surveillance device warrant, the use 5 under the warrant of a device known as “the beacon” in May 2015, and the electronic records of what was returned when the beacon was used. No formal application was filed seeking disclosure, but it arose in the pre-trial process (the application for disclosure).
That application for disclosure was opposed in the District Court by the 10 Crown. After two hearings that took place over nearly a year, it was declined by Judge Cunningham.1 Mr Hutton appealed that decision to the High Court.2 The appeal was dismissed by Woolford J.3
Mr Hutton now seeks leave in this Court to file a second appeal. It has been directed that the application for leave to appeal and the proposed appeal 15 be heard together.4 The relevant provision is s 223(3) of the Criminal
Procedure Act 2011:
(3) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—
(a)the appeal involves a matter of general or public importance; or 20
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
We grant leave to appeal, because the correct approach to disclosure of material that discloses confidential investigative techniques is a matter of general importance. 25
Brief history
In 2015 covert internet investigators in the Department of Internal Affairs (DIA) communicated on the internet with a person using a profile called “Kiwipedo”. The communications were on an encrypted area of the internet known as the “dark web” or “dark net” (as opposed to the clear net) and 30
involved the “Tor” network, Tor standing for “The Onion Router”. The dark
web is a place on the internet which can be accessed only with special software, and which contains services or areas that are not accessible in the normal way.
Criminals, including those who have a sexual interest in children, can create hidden services in the dark web. 35
A covert DIA investigator accessed the dark web, and established contact with a person called Kiwipedo who had a sexual interest in children. The officer, posing as a person with the same interest, discussed a plan for Kiwipedo to purchase a child. Kiwipedo expressed a desire to perform sexual
acts on that child. A different covert internet investigator then made 40
communication with Kiwipedo and mentioned a seven-year-old daughter, and there was ultimately a specific discussion about the child being made available, including naming a motel in Auckland where they could meet, and what might be done.
Hutton v R [2017] NZDC 27089 [DC decision].
Criminal Disclosure Act 2008, s 33.
Hutton v R [2018] NZHC 662 [HC decision].
Hutton v R CA203/2018, 10 May 2018 (minute) at [3].
[8] In May 2015 the DIA sought a surveillance device warrant to use a device to locate the person who was using the Kiwipedo profile.5 The investigators wished to use software to send what is known as a “beacon”, which is an image or signal that can be used to report back that the document
has been opened, and importantly can provide the IP address of the computer that received the image.6 A detailed application for a warrant was filed. A surveillance warrant was granted on 20 May 2015 (the surveillance warrant).
[9] A beacon was then placed within a document and sent by an investigator to Kiwipedo. This provided the investigators with the IP address used by
10 Kiwipedo. That IP address would otherwise have been concealed due to the encrypted nature of the Tor network. DIA investigators were then able to determine via the internet service provider the physical location associated with the IP address, which the Crown says proved to be Mr Hutton’s place of work.
[10] The police and the DIA, after using the beacon, executed a search
15 warrant at Mr Hutton’s workplace on 4 August 2015 (the second search warrant). It is alleged that forensic examination of Mr Hutton’s work computer revealed that the Kiwipedo profile was used on that computer. Also located on his work computer was evidence of Tor access to a child abuse website known as “Playpen”. This was one of the largest known hidden services for child
20 sexual imagery before it was shut down in 2015. When the search warrant was executed other computers in the office were also of interest to the police.
[11] There was then a third search warrant obtained and executed on Mr Hutton’s home address, which allegedly revealed a hard drive containing approximately 417 images of objectionable child abuse material.
25 [12] Mr Hutton was then charged as we have outlined. The application for this surveillance warrant, and the evidence derived from its use, is under scrutiny and possible challenge by Mr Hutton. Full disclosure of the application and the print out of the electronic return from the beacon had been sought by Mr Hutton. The application and the return have both been provided,
30 but parts are redacted. Mr Hooker for Mr Hutton seeks access to unredacted versions. The Crown had objected to unredacted disclosure, relying on s 16 of the Criminal Disclosure Act 2008. There were then disclosure hearings heard by Judge Cunningham in the District Court at Waitakere.
The decisions
35[13] At the first disclosure hearing on 1 and 2 December 2016 the DIA Senior Investigator, Steven Waugh was called, gave evidence and was cross-examined. Judge Cunningham heard submissions and adjourned the application part heard, giving a short decision setting out disclosure issues that had to be resolved.7 The hearing was resumed on 3 and 4 October 2017 and the
40 decision was released on 1 December 2017.8 The Judge, like us, had all the unredacted material before her.
[14] The District Court Judge treated the application as “in essence a non-party disclosure hearing pursuant to s 29 of the Criminal Disclosure Act”.9 She held:
5 Search and Surveillance Act 2012, s 49.
6 “IP address” is short for Internet Protocol address. It is a number assigned to a connection in a network. There may be multiple computers using one IP address.
7 R v Hutton [2016] NZDC 24886.
8 DC decision, above n 1. 9 At [10].
[37] Turning to s 16, I am satisfied that the information sought can be withheld because it would be likely to prejudice the maintenance of law including the prevention investigation and detection of offences (s 16(1)(a)). I am also satisfied that the tool itself cannot be separated from
the information it produces namely the IP address. This is based on my 5 acceptance of the evidence given by Mr Waugh.
Judge Cunningham refused the application pursuant to s 16(1)(a), s 16(1)(g)(ii) and ss 29(2) and (3) of the Criminal Disclosure Act.10 She refused to allow disclosure to Mr Hutton’s expert, as we explain later.
Mr Hutton appealed the non-disclosure decision and that appeal was 10 heard by Woolford J in the High Court. The Judge noted that this was because
Mr Hutton wished to challenge the lawfulness of the surveillance device warrant which led to the use of the beacon, and sought disclosure of the application for the search warrant and the electronic records of the return from
the device.11 A redacted version of the application and electronic data had been 15 provided to Mr Hutton with an explanation that to provide any further information would compromise the ability of law enforcement agencies (both
in New Zealand and overseas) to use the device in the future. Further disclosure was opposed.12 Woolford J noted that the application should not have been
determined under s 29 of the Criminal Disclosure Act and should have been 20 treated as an application for disclosure from the prosecutor.13 This conclusion
is not contested on appeal.
Woolford J concluded that there was nothing to indicate that the Judge who issued the warrant was misled by false and misleading information in the
DIA application for a warrant, or that the beacon was used in breach of the 25 terms of that warrant.14 He considered the defence application to be a “fishing expedition”.15 He held that there was no obligation on the Judge to view the original unredacted documents.16 Woolford J noted that:17
There is a real public interest in withholding sensitive information relating
to investigatory techniques, the disclosure of which would be likely to 30 prejudice the investigation and detection of offences.
He observed that the person using the profile Kiwipedo had discussed the need for encrypted connections, and that person also expressed concern that the person he was communicating with might be from a law enforcement
agency.18 Moreover the Judge accepted that there would be obvious prejudice 35 to overseas goodwill if a device used by both New Zealand and overseas agencies was compromised through the release of the redacted material.19 He
also concluded that it was reasonable for Judge Cunningham to conclude that disclosure to anyone outside of law enforcement was risky, even if that person
was a defence expert subject to an undertaking of confidentiality.20 40
At [49].
HC decision, above n 3, at [5]. 12 At [5].
At [9].
At [12].
At [12].
At [18].
At [19].
At [19].
At [20].
At [21].
[19] He decided that disclosure of the redacted material was not necessary to ensure that Mr Hutton could adequately defend the charges, and indeed he could not see how he could be helped by such disclosure. There was no question of the beacon having returned the wrong IP address.21 He dismissed
the appeal.
The relevant provisions of the Criminal Disclosure Act
[20] The Criminal Disclosure Act created a new statutory regime for criminal disclosure. Previously there had been various common law duties, statutory provisions and the Official Information Act 1982 available to defendants.22 The
10 Act replaced that miscellany of provisions and common law with a detailed disclosure regime which included a diagrammatic representation of the process.23 The purpose of the Act is to promote “fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings”.24 The Act refers
15 to three types of disclosure: disclosure by a prosecutor (ss 12–19), disclosure by a defendant (ss 20–23) and disclosure by non-parties (ss 24–29).
Disclosure from prosecutor or non-party?
[21] In the District Court Mr Hutton’s application was treated as an application for disclosure from a non-party (the DIA) under s 29 of the Act.
20 However as Woolford J pointed out in the High Court,25 a prosecutor is defined in s 6 of the Act as meaning a person who is for the time being in charge of the file or files relating to a criminal proceeding, and includes an agency by whom the prosecutor is employed.26 Prosecutor is defined as:
prosecutor means the person who is for the time being in charge of the file
or files relating to a criminal proceeding; and includes—
(a) any other employee of the person or agency by whom the prosecutor is employed who has responsibilities for any matter directly connected with the proceedings; and
(b) any counsel representing the person who filed the charging
document in the proceedings; and
(c) in the case of a private prosecution, the person who filed the charging document and any counsel representing that person
[22] This is an inclusive definition as opposed to an exclusive definition, and contemplates multiple prosecutors. It is relevant that s 33 of the Interpretation
35 Act 1999 provides that “[w]ords in the singular include the plural and words in the plural include the singular.” The investigation of persons who possess and share child pornography involves coordination between DIA, Police, and Customs. In this case, all three search warrants were applied for by a DIA officer. The DIA is the agency by whom the Police have been engaged, and
21 At [22].
22 See the discussion in Simon France (ed) Adams on Criminal Law – Procedure (online ed, Thomson Reuters) at [CD3.01].
23 Criminal Disclosure Act, s 3(2).
24 Section 3(1).
25 HC decision, above n 3, at [9].
26 Section 6(1) definition of “prosecutor”, para (a).
it is the DIA that had initial responsibility for the proceedings. In our view both the DIA and the Police fall under the definition of “prosecutor”. This was not a non-party disclosure application, but an application for disclosure by the prosecutor.
Even if this was a non-party disclosure matter, a judge may refuse to 5 order disclosure if the judge is satisfied that any of the reasons described in
ss 16 or 18 for which information could be withheld, applies.27
The disclosure process
The starting point for disclosure by a prosecutor is s 13(1) and (2) which provide: 10
13 Full disclosure
(1) The prosecutor must disclose to the defendant the information described in subsection (2) as soon as is reasonably practicable after a defendant has pleaded not guilty.
(2) The information referred to in subsection (1) is— 15
(a)any relevant information, including, without limitation, the information (standard information) described in subsection (3); and
(b)a list of any relevant information that the prosecutor refuses under section 15, 16, 17, or 18 to disclose to the defendant together 20
with—
(i) the reason for the refusal; and
(ii) if the defendant so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 16, 17, or 18 and 25
(in the case of the interests protected by section 18) there is
no overriding public interest.
...
“Relevant information” is defined in s 8 as:
8 Meaning of relevant 30
In this Act, relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.
The concept of relevance has similarities to the definition of relevant admissible evidence in s 7(3) of the Evidence Act 2006, and that in r 8.7 of the 35
High Court Rules 2016 relating to discoverable documents. Relevance means
tending to support or rebut the Crown or defence case, or have a material bearing on it.
The rationale for disclosure is the right to a fair trial so a defendant can fully understand the case to be answered, and have access to information in the 40
possession of the prosecutor that may assist the defence.28 Full disclosure will
help ensure that proper procedures are followed by prosecuting bodies by
Section 29(2)(a).
See also the connected rationales described by Simon France, above n 22, at [CD3.01].
disclosing the detail of the investigation to defence scrutiny. In R v Sullivan the High Court observed that the Crown is to approach its disclosure obligations not as an adversary to secure a conviction, but to ensure that justice is done.29
[28] However, as the Act provides, there can be limitations to disclosure
5when other more powerful matters in the public interest outweigh the disclosure obligation. Where there is such a competing interest a court will endeavour to balance that competing interest fairly, and to remove or minimise any detriment to a defendant arising from limitations on disclosure. The principles of open justice and the right to receive information in the New Zealand Bill of Rights
Act 1990 work for disclosure.30
[29] A prosecutor may withhold disclosure for a number of reasons, including those set out under s 16(1)(a) and (g):
16 Reasons for withholding information
(1) A prosecutor may withhold any information to which the defendant
would otherwise be entitled under this Act if—
(a) disclosure of the information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences;
...
(g) the disclosure of the information would be likely to prejudice—
(i)the security or defence of New Zealand or the international relations of the Government of New Zealand; or
(ii)the entrusting of information to the Government of New Zealand on a basis of confidence by the government of any
other country or any agency of such a government or any international organisation; or
...
[30] This limitation on the obligation to disclose is, however, subject to a further provision:
30 Court order for disclosure of information
(1)The defendant may apply to the court for an order that a particular item of information or type of information in the possession or control of the prosecutor be disclosed on the grounds that—
(a) the defendant is entitled to the information under section 12, 13,
or 14, as the case may be, and—
(i)the prosecutor failed to disclose the information; or
(ii)the prosecutor refused under section 14, 16, 17, or 18 to disclose the information, and—
(A) none of the reasons described in section 16, 17, or 18 for
which information could be withheld applies to the information; or
(B) in the case of a refusal under section 17, the information ought to have been disclosed under section 17(3); or
(C) in the case of a refusal under section 18, the information
ought to have been disclosed under section 18(2); or
29 R v Sullivan [2014] NZHC 1105 at [34].
30 New Zealand Bill of Rights Act 1990, ss 14 and 25(a); and see Attorney-General v Otahuhu District Court [2001] 3 NZLR 740 (CA) at [41], recognising the importance of the rights in that Act to disclosure.
(b)even though the information may be withheld under this Act, the interests protected by the withholding of that information are outweighed by other considerations that make it desirable, in the public interest, to disclose the information.
(2) If the court is satisfied, on an application made under this section, that 5 the defendant is entitled to the disclosure of any particular item of information or type of information, or that any particular item of information or type of information should be disclosed to the defendant under subsection (1)(b), the court may order that the item or
type of information be disclosed to the defendant. 10
(3) An order made under this section may be made subject to any conditions that the court considers appropriate.
(Emphasis added.)
Section 30 contemplates that a court may order disclosure with or without conditions. In some cases a prosecutor may properly refuse to disclose 15
information, but a court may, in conducting the balancing exercise described
above, order unconditional disclosure. However, if the court concludes the balancing does not favour unconditional disclosure, the balancing exercise under s 30 may be repeated to see whether conditions could mitigate the prosecutor’s concerns.31 This is clear from the language of the section, and is 20
consistent with the purpose of the Act.32 When this further balancing exercise under s 30 is carried out it may be found that there should be disclosure.
As mentioned below, Mr Hooker did not seek unconditional disclosure and for the reasons apparent below it would not have been granted. In this case,
then, s 30 can be addressed with a single balancing exercise applied to 25
disclosure with proposed conditions.
There is, therefore, a three-stage analysis for an issue such as this. First, was there relevant information the prosecutor should have disclosed under s 13? Second, if there has been no disclosure, could the prosecutor withhold all
or some of that information under s 16? Third, if information could be so 30
withheld under s 16, should it in any event have been disclosed under s 30?
We interpolate to say we are unable to see any benefit in approaching the issues in terms of onus under ss 16 and 30, as Mr Hooker urged. There is no mention of onus in those sections. Plainly under s 16, the prosecutor reaches a decision. If a defendant disagrees with the disclosure decision, he or she applies 35
to the court under s 30. Under s 30(2) the court must be “satisfied” that the
applicant is entitled to disclosure before it will make an order that a document be disclosed. The word “satisfied” does not import any onus. The concept of a court being satisfied has been discussed frequently by New Zealand courts and
it means what it says.33 For example, in R v Leitch this Court said:34 40
The need to be “satisfied” calls for the exercise of judgment by the ... Court. It is inapt to import notions of the burden of proof and of setting a particular standard, eg beyond reasonable doubt.
Section 30(3).
Section 3. See above at [27].
See Iti v R [2011] NZCA 114 at [30]; R v A (CA255/2009) [2009] NZCA 380 at [18]; Z v
Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [96]; and R v Leitch [1998] 1 NZLR 420 (CA) at 428.
At 428.
[35] We accept, however, that the court, in considering whether it is “satisfied”, will take into account the context in which ss 16 and 30 arise, including the purpose of the Act to promote fair, effective, and efficient disclosure of relevant information, as well as the right to receive information.
5 In carrying out the balancing, the purpose of the proposed disclosure, and its potential helpfulness to the defence as best that can be discerned, will be relevant to assessing the public interest.
The submissions
[36] The Crown has rightly not suggested that there is anything wrong or
10 inappropriate in the requests for disclosure, and has accepted a disclosure obligation under s 13. The defence is entitled to obtain full disclosure of information relating to the grant and use of a warrant, to discern whether an investigator has acted lawfully. The Crown has successfully opposed disclosure of the redacted parts under s 16(1)(a)35 and disclosure of those redacted parts
with conditions under s 30.
[37] In his written submissions Mr Hooker advised the Court that the specific issues were:
(a)In determining whether the Prosecutor has correctly withheld from disclosure information pursuant to s 16 of the [Criminal Disclosure]
Act what test is to be applied by the Court?
(b)If conditions can be imposed on the disclosure of information so as to adequately protect the interests in the information protected from disclosure by s 16 of the [Criminal Disclosure] Act must the Court order disclosure by the Prosecutor?
25[38] However in his oral submissions to us Mr Hooker did not suggest that the prosecutor had incorrectly withheld disclosure of the redacted information to Mr Hutton personally under s 16. This was presumably because if it is proven that Mr Hutton is Kiwipedo, he is an electronically-skilled paedophile who could use or share the information concerning how the beacon is used to
30 prevent its operation in future, thus thwarting further investigations. Rather his focus was on s 30 and whether, if conditions were imposed on disclosure, there would be adequate protection of the information so that disclosure could be ordered.
[39] The conditions he put forward which he said justified the exercise of the
35 s 30 discretion centred on the data not being provided to Mr Hutton, but rather being provided to the expert engaged by Mr Hutton, Mr Brent Whale. The proposed conditions were, to be in the form of an undertaking, as follows:
1.Any Electronic Data which is provided to me [Brent Whale] pursuant to the provisions of the Criminal Disclosure Act by the DIA will not be
copied or disseminated or distributed to any person.
2.For the purpose of assisting Mr Hutton in his defence, I may disclose the contents of the electronic data to Counsel for Mr Hutton (Mr Hooker) by producing a written form of the electronic data.
3.For the purpose of assisting Mr Hutton in his defence, I may discuss
it with Mr Hutton, but I undertake that I will not provide to him a
35 The Crown also relied on s 16(1)(g)(ii), set out above at [29]. We have not found it necessary to consider that provision separately from s 16(1)(a) in this case: see below at [60].
copy of the electronic data and I will not provide to him a written form [of] the contents of the electronic data.
4. If I am required by Counsel to provide evidence in court about the contents of the electronic data, then subject to further direction from
the court, I may publish or produce in a written form the contents of 5 the electronic data which has been provided to me by the DIA. This will assist me in the presentation of my evidence to the court.
5. At the conclusion of the prosecution of Aaron Hutton, I will forensically wipe the electronic data which I have received from the DIA. I will not keep any copies of the electronic data or documents. 10
Mr Hooker pointed out that in its application for the original surveillance warrant to issue the electronic beacon to Kiwipedo, information was given to the Court as to how the beacon would function and what it would do, including what information it would send back to the DIA from the
Kiwipedo computer. All that the appellant had was a copy of the application 15 with some detail redacted. He claimed that the defence was not able to effectively challenge whether the warrant application correctly or adequately described the beacon or its functioning.
Mr Hooker made particular mention of the printout of what the beacon returned electronically to the DIA on two occasions. That document has been 20 disclosed but it was redacted. There were two returned signals obtained from
the first two electronic beacons, there was no return signal from the third electronic beacon. He submitted that it is not known whether the electronic beacon went to the server at Mr Hutton’s workplace or to the individual computer of Kiwipedo. There was at the premises another individual, who was 25 first suspected of being Kiwipedo. That person’s computer was also seized.
There may have been confusion.
Mr Hooker submitted that the searches were unlawful because the search warrant inaccurately described to the Judge the functioning of the electronic beacon. It also inaccurately described the data which the electronic 30 beacon would and did actually return to the DIA. He emphasised that the information that was stored on the computer was private and s 21 of the New Zealand Bill of Rights Act applied. There is a high level of privacy expected in relation to smart phones, computers and other devices upon which electronic information is stored.36 35
Mr Hooker submitted the confidentiality concerns could be protected by the conditions that he proposed.
Analysis
The starting point, as mentioned above at [24]–[27], is s 13 of the Criminal Disclosure Act. Woolford J described the request for disclosure as a 40
“fishing expedition”.37 That is so, but it is legitimate fishing to seek disclosure
of prosecution materials to check the validity of the warrant process. We have no doubt that all the redacted material in the first application for a surveillance warrant, and in the material that was returned, falls within the definition of
“relevant”. So the starting proposition is that the unredacted warrant 45
information was information that should have been disclosed under s 13.
Relying on Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [191]; and S (CA712/2015) v R [2016] NZCA 448 at [41]–[43].
HC decision, above n 3, at [12].
[45] Next, it is necessary to decide whether the prosecutor could, under s 16, withhold what it redacted because it was likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences.
[46] It is clear that that the development of software, and the details of the use
5 of that software, to send a beacon which is able to discern an IP address on the dark web is highly confidential. This technology has been shared with investigation bodies in other countries. It involves technical expertise developed specifically to discover those who mask their identity online to carry out unlawful activities. The DIA’s expert, Mr Waugh, made it clear that if the
10 details of the software and the use of the beacon were made available and became known to persons who wished to operate in the dark web, that they would probably be able to develop systems or techniques that would enable them to foil and avoid such investigation. Plainly this would severely hinder the investigation of the use of the dark web for crime. Thus there can be no doubt
15 that the prosecutor was properly withholding the information from Mr Hutton under s 16, to stop it being used to significantly prejudice the investigation and detection of crimes. In oral submissions Mr Hooker did not seek to argue otherwise.
[47] The third issue is whether disclosure to Mr Hutton’s expert, Mr Whale,
20 should have been permitted under s 30. Or, to put it more precisely in the words of that section, whether the information may be withheld because the interests of withholding the information are outweighed by other considerations that make it desirable, in the public interest, to disclose the information. As we have said, this was Mr Hooker’s primary focus in oral submissions.
25[48] In this case the s 30(1)(b) exercise involves balancing the need to preserve the confidentiality of the DIA technique so it can be used again, against the public interest in the fair disclosure of information to the defendant38 to assist in the defence of the proceedings. This encompasses the ability of Mr Hutton to mount an effective defence and receive a fair trial.
30 [49] In the two hearings before Judge Cunningham in relation to the disclosure issue, at which evidence was given, the issue of disclosure to Mr Whale, as distinct from Mr Hutton, was explored in detail. Mr Waugh gave evidence as did Mr Hutton’s expert Mr Whale, a police officer John Michael, and two investigators of the DIA, being Russell Grey and Timothy
Houston.
[50] Mr Michael, Mr Grey, and Mr Houston were cross-examined about redactions in the warrant applications concerning their conversations with Kiwipedo. Mr Waugh is a senior investigator and team leader in the DIA and was in charge of the investigation. His expertise in relation to tracking devices
40 was ultimately not in doubt. He was cross-examined at length on the return of the IP address from the beacon. He emphasised on oath that the DIA was only seeking the IP address and nothing else with the beacon, and it did not pursue any other programmes that might have been accessible. He explained that the concern was that “the bigger you make the web beacon, the bigger footprint it
45 leaves”. They wanted to get in and out quickly and not be detected. So the use of the beacon was as limited as possible.
[51] He also stated repeatedly on oath that the use of the beacon did not reveal any other information save for the IP address. That was the only thing it was created for, and the only thing the DIA was after. His evidence on this was
38 See the purpose of the Act in s 3.
not damaged by extensive cross-examination, and his explanation is on its face entirely credible. Mr Waugh also explained that the redacted portion of the return showed how the DIA systems and the web beacon worked, it did not contain further information about the targeted computer.39 Judge Cunningham
discussed and accepted this evidence of Mr Waugh, which she heard over a 5 number of days.40 In our view his evidence was balanced and credible, and we agree with her assessment.
In particular the District Court Judge made findings of fact that Mr Waugh had given truthful evidence that:41
(a) to provide the electronic data would disclose to a person with the 10 relevant computer skills the way in which the tool or beacon works
and that could lead to its use being an important investigative tool being compromised;
(b) this information has been shared with international agencies; and
(c) its disclosure would compromise ongoing and future investigations. 15
These findings were not disturbed on appeal to the High Court.42 We accept them. Mr Hooker did not specifically challenge these findings, though he criticised Mr Waugh’s evidence on these issues as vague. We disagree.
Mr Whale, Mr Hutton’s expert, conducts a business called Computer Forensics Solutions Ltd. While it would seem that Mr Whale has expertise in 20 computers, it was established that he was not an expert in the field of software development for tools such as tracking devices. Mr Whale unsurprisingly therefore did not give any expert evidence about the beacon, and no specific evidence about the application for the surveillance warrant being misleading.
He was however asked about the return of the IP address and he 25 confirmed that there were blank lines in the return, which he interpreted as indicating that more than just the IP address was returned. If that were so,
Mr Hooker took the view that it might be found that the application for the surveillance warrant was misleading because the use of the beacon would return more than just the other party’s IP address. It might, for instance, have 30 returned confidential information from other computers near this site.
Approximately 70 per cent was redacted and that might contain useful information to show that the application was misleading. For the reasons just covered, and below at [57], we prefer the evidence of Mr Waugh to this speculation. 35
We accept that there will be occasions when conditions providing for disclosure to an expert may be appropriate. For example in Bellette v R this Court directed that sensitive medical records of the complainant should first be reviewed for relevance by an expert before being released to counsel.43 In some circumstances the Court has appointed an amicus to assist the Court with 40
pre-trial assessments of material that has been withheld from the defence and counsel.44 This course has not been proposed by Mr Hooker and, for the
reasons that we will set out, because of the extreme prejudice to investigations
Mr Waugh likened this to a road map, showing the path the beacon took through various layers to the targeted address.
DC decision, above n 1, at [36]–[37].
DC decision, above n 1, at [36].
See HC decision, above n 3, at [20].
Bellette v R [2013] NZCA 467 at [6].
For example Cutfield v R [2013] NZCA 653 at [8]–[10].
should the information be disclosed, and the risk of a breach in expectations and confidences from overseas agencies, any such application would have to be put forward in detail and considered on its merits.
[57] Importantly, there is nothing to show that there was anything untoward
5 in the application for a surveillance warrant or in the four-line return that was obtained. The redacted parts of the application and the redacted lines of the return are entirely consistent with lines containing technical information as described by Mr Waugh. There is nothing before the Court to cause concern about the integrity of the surveillance warrant application. Further, there is
10 nothing to indicate that Mr Hutton will not be able to mount an effective defence or receive a fair trial without the disclosure of the redacted portions.
[58] We agree with the Courts below that a court cannot be satisfied that there should be disclosure of the redacted material with conditions under s 30. We have considered whether modifications to the conditions might make disclosure
15 appropriate, but the risks associated with disclosure to any outside expert such as Mr Whale seem to us to be insurmountable.
[59] First, as Mr Hooker’s conditions indicate, the expert would wish to disclose relevant aspects to counsel who could make decisions as to what was the appropriate legal and factual response. Counsel then would be placed in the
20 difficult position of not being able to discuss in full the legal options arising with the client, in breach of the duty of full disclosure to the client.45 Further, there would thereby be not one but two offices involved, with the opportunity for confidentiality and security breaches. Other than a proposal that Mr Whale would wipe the data after the prosecution,46 there is no information about
25 Mr Whale’s and Mr Hooker’s confidentiality systems that could lead to an assurance of certain confidentiality.
[60] Second, other agencies are involved in the use of the beacon technique. It is easy to see why cooperating organisations in other countries might be most concerned about disclosure outside the trusted New Zealand organisation. This
30 engages the related issue in s 16(1)(g)(ii); that disclosure would be likely to prejudice the entrusting of information in confidence to the New Zealand Government by foreign governments or agencies. This could lead to an unwillingness to disclose useful investigation devices and techniques in the future.47 There may be occasions where the Crown may have to choose
35 between disclosure and proceeding with the prosecution, but this is not one. The lack of any indication that the redacted information would reveal any material helpful to the defence, and the certain damage to an important tool which enables the investigation of serious crime of this nature, tip the balancing clearly in favour of non-disclosure.
40 [61] We conclude that the proposed conditions of disclosure to Mr Whale do not change the balancing under s 30(1)(b) to the point where disclosure should be ordered. For the reasons we have given, which are in part in accord with those of the District Court and High Court, we reject the imposition of conditions under s 30(3) as a basis for an order for disclosure under s 30(2).
The application was rightly dismissed.
45 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, ch 7.
46 See above at [39].
47 For a further discussion on the possibility of disclosure in breach of commitments made to overseas agencies, and the practice of entering into arrangements with such agencies, see Pham v R [2016] NZCA 445 at [31].
Result
The application for leave to appeal is granted.
The appeal is dismissed.
Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other 5 publicly available database until final disposition of trial. Publication in law report or law digest permitted.
Orders
(A) The application for leave to appeal is granted.
(B) The appeal is dismissed. 10
(C) Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.
Reported by: Rachel Marr, Barrister 15
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