Ibbetson v R - [2011] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

CA157/2011

[2011] NZCA 228

BETWEEN ROBERT IBBETSON
Appellant

AND THE QUEEN
Respondent

Hearing: 16 May 2011

Court: Harrison, Simon France and French JJ

Counsel: M B Meyrick for Appellant
B D Tantrum for Respondent

Judgment: 26 May 2011 at 12.30 pm

JUDGMENT OF THE COURT

A. The appeal against conviction is dismissed.

B. The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by French J)

Introduction

A District Court jury found Mr Ibbetson guilty of the following charges:
(a)One count of distributing an objectionable publication contrary to s 124 of the Films, Videos, and Publications Classification Act 1993.
(b)Thirteen counts of possession of objectionable publications contrary to s 131A of the Films, Videos, and Publications Classification Act 1993.
He was sentenced to a term of imprisonment of 12 months.[1]
[1] R v Ibbetson DC Auckland CRI-2008-004-13310, 17 March 2011.
Mr Ibbetson now appeals against his conviction on all counts, and also appeals his sentence.

Factual background

In February 2008 a Department of Internal Affairs inspector discovered that a user associated with Mr Ibbetson’s IP address had made an objectionable movie file available to internet users at large by way of a file sharing program called LimeWire. The file in question was of a three year old girl being raped by an adult male.
Mr Ibbetson’s computer was seized and examined. The examiner found a folder containing 13 movie files which were considered objectionable. The files were up to 13 minutes in duration and featured girls aged between three and 14 years of age being sexually violated and raped by men in the anus, mouth and vagina.
The 13 files were the basis of the 13 possession counts, while the distribution count related to Mr Ibbetson’s sharing of the movie about the three year old girl by leaving it in a shared LimeWire folder.
At trial there was an agreed statement of admitted facts that any person exposed to the files in question must have had reasonable cause to believe that they were objectionable.
The defence case was that other people living in the same house as Mr Ibbetson, including his sister and overseas homestay students, all had access to his computer and that he did not know that any of the objectionable material was on it. Mr Ibbetson, who gave evidence, also testified that he was unaware of critical aspects of the LimeWire software.

Appeal against conviction

Mr Ibbetson raises four grounds of appeal:
(i)The convictions were a nullity because leave to commence the prosecution had been granted by the Solicitor-General and not the Attorney-General, contrary to s 144 of the Films, Videos, and Publications Classification Act.
(ii)The prosecution’s non-disclosure of a compact disc containing the computer files gave rise to a miscarriage of justice.
(iii)The Judge’s summing up on the possession charge was unbalanced, excessive emphasis having been given to the prosecution case.
(iv)The verdict on the distribution charge was not supported by the evidence.

Was leave to prosecute…

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.

Continue reading Ibbetson v R

Details

AGLC: Ibbetson v R [2011] NZCA 228
Case: [2011] NZCA 228
Decision Date: 26 May 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Robert Ibbetson against his conviction and sentence for distributing and possessing objectionable publications. The charges stemmed from Ibbetson's involvement in making a film of a three-year-old girl being raped available on LimeWire, a file-sharing program, and having thirteen other films of child pornography on his computer. Ibbetson was found guilty by a jury and sentenced to 12 months' imprisonment. The Court of Appeal considered four grounds of appeal against conviction and one against sentence.

The first ground of appeal argued that the prosecution was invalid as the leave to prosecute was granted by the Solicitor-General instead of the Attorney-General, as required by the Films, Videos, and Publications Classification Act 1993. The Court rejected this argument, stating that the Solicitor-General had the authority to grant leave under the Constitution Act 1986.

The second ground of appeal claimed that the non-disclosure of a compact disc containing the objectionable files by the Crown led to a miscarriage of justice. The Court found that the Criminal Disclosure Act 2008 did not apply to the proceedings and that the content of the files was irrelevant to the charges.

The third ground of appeal contended that the summing up by the trial judge was unbalanced, giving excessive emphasis to the prosecution case. The Court held that the trial judge adequately put the defence case, and there was no need for equal time and emphasis on both cases.

The fourth ground of appeal argued that the evidence did not support the verdict on the distribution charge. The Court found that there was sufficient evidence from which the jury could infer Ibbetson's knowledge and intent in making the objectionable file available on LimeWire.

The only ground of appeal against sentence argued that the District Court was wrong to reject home detention as an appropriate alternative to imprisonment. The Court of Appeal upheld the District Court's decision, stating that home detention would not be appropriate due to Ibbetson's lack of remorse and insight.

In conclusion, the Court of Appeal dismissed both the appeal against conviction and the appeal against sentence.

Orders