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R v Barber

R v Barber

Case [2007] NZCA 239 13 June 2007

Admissibility of Evidence

Expert Evidence

Criminal Liability

Importation of Prohibited Goods

Criminal Law

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ORDER NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA458/06 [2007] NZCA 239

THE QUEEN

v

IAN JOHN BARBER

Hearing: 23 May 2007

Court: Wilson, Williams and Rodney Hansen JJ Judgment: 13 June 2007 at 11 am

JUDGMENT OF THE COURT

A Leave to appeal is granted, but the appeal is dismissed.

BOrder not to be published in news media or on internet or other publicly accessible database until final disposition of trial. Publication in law report
or law digest permitted.

REASONS OF THE COURT

(Given by Williams J)

R V IAN JOHN BARBER CA CA458/06 13 June 2007

Issue

[1] The appellant faces trial in the District Court on 18 charges under the Customs and Excise Act 1996 s 54 of being knowingly concerned in the importation of prohibited goods, namely electronic publications that are objectionable under the Films, Videos, and Publications Classification Act 1993.

[2] On 8 November 2006 Judge Field ruled the evidence of a Mr Peacock admissible on an application under the Crimes Act 1961 s 344A relating to images found on Mr Barber’s computer. Mr Peacock is an Inspector of Publications employed by the Department of Internal Affairs.

[3] Mr Barber has appealed to this Court against that ruling.

Background

[4] In 2003 the Department of Homeland Security in the United States of America set up an operation to identify and prosecute offenders and disrupt activities surrounding child pornography. It utilised an undercover operation to penetrate a US-based business that was a clearinghouse for internet access to about 50 child pornography websites. One result was that US authorities obtained records of log ons between February 2002 and July 2003 to child pornography websites for thousands of customers around the world and provided details to national authorities, including the New Zealand Customs Service.

[5] On 21 February 2005, Customs and Police officers executed a search warrant on Mr Barber’s premises and seized his computer and its hard drive. There is no challenge to the search.

[6] Mr Barber gave officers computer details including his passwords and is said to have told a detective that he had a “preference for girls 13 and older to 16 years old”.

[7] The hard disk drive in Mr Barber’s computer was cloned and sent to

Mr Peacock who has, since its inception in 1996, been a member of the Censorship

Compliance Unit with the Department of Internal Affairs, investigating internet- based offending, particularly that involving child pornography. In that capacity he has not only conducted many computer searches of such material but has also attended a number of training courses, including an investigation of computer systems using specific software applications.

[8] Mr Peacock located over 63,000 image files in directories on the hard drive including one called “News Rover”, which he knew from previous investigations to be an application used to access…

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 R v Barber

Details

AGLC: R v Barber [2007] NZCA 239
Case: [2007] NZCA 239
Decision Date: 13 June 2007

CaseChat Overview and Summary

The appellant, Ian John Barber, appealed against the ruling of Judge Field that the evidence of Mr Peacock, an Inspector of Publications employed by the Department of Internal Affairs, was admissible on an application under the Crimes Act 1961 s 344A relating to images found on Mr Barber’s computer. Mr Peacock concluded that the images found on Mr Barber's computer were objectionable electronic publications under the Films, Videos, and Publications Classification Act 1993. The main legal issue before the Court was whether Mr Peacock’s evidence was admissible at trial. The Court found that the evidence was relevant and probative, and that there was no basis to interfere with Judge Field's ruling. The Court held that the appellant's computer was seized under a search warrant, the validity of which was not in contest, and that the hard drives of the computer were cloned. Mr Peacock, an expert, gained access to images on the cloned hard drives, and concluded that the images were objectionable electronic publications under the Films, Videos, and Publications Classification Act. The Court found that the fact that the objectionable material was imported into New Zealand by the appellant installing the News Rover program on his computer and operating it in the way described by Mr Peacock so the images were stored on his hard drive, was not any different from the importing and holding of any other objectionable images imported into this country and held in any other form.

The Court dismissed the appeal against the ruling, and leave to appeal was granted but the appeal was dismissed. The order not to be published in news media or on internet or other publicly accessible database until final disposition of trial was in place, but publication in law report or law digest was permitted.

Orders