R v Spark - [2009] NZCA 345

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/2009 [2009] NZCA 345

THE QUEEN

v

MALCOLM ALBERT SPARK

Hearing: 1 July 2009
Court: Hammond, Simon France and Lang JJ Counsel: S G Vidal for Appellant
P K Hamlin for Crown

Judgment: 6 August 2009 at 10 am

JUDGMENT OF THE COURT

A The conviction on Count 10 is quashed. No retrial is ordered. B The appeals against all the other convictions are dismissed.
C The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

R V SPARK CA CA267/2009 6 August 2009

Table of Contents

Para No

Introduction [1] Background [2] The Films, Videos and Publications Classification Act 1993 [11] The publication issue [20] Evidence illegally obtained? [34] “Making” and Count 10 [36] The appropriate directions on “knowledge” [38] Whether the accused in fact made the document or was party to it [43] Whether in law it has been classified as “objectionable” [44]
Whether the accused knew or had reasonable cause to believe the publication was objectionable [45]

Admitting expert classification evidence without calling the expert [55] Miscellaneous points [56] The proviso [64] Sentence appeal [74]

Introduction

[1] The appellant, Mr Spark, was found guilty following a trial before a jury presided over by Judge Saunders in the District Court in Christchurch on ten counts of making an objectionable publication contrary to ss 123(1)(a) and 124(1) of the Films, Videos and Publications Classification Act 1993 (the Act), and fourteen counts of possessing an objectionable publication contrary to ss 131(1) and 131A(1) of that Act. On 30 April 2009, the Judge sentenced Mr Spark to 2 years and
6 months imprisonment. Mr Spark now appeals against the convictions, and his sentence.

Background

[2] Mr Spark was in his late 50s for the duration of the offending. He was a registered teacher who had taught at several Christchurch area schools. Over a period of time he contacted a number of young girls through internet chat programs. He instigated explicit sexualised conversations with those girls.

[3] One conversation between an 11 year old girl (X) and Mr Spark was intercepted by X’s mother. The mother contacted the Department of Internal Affairs. X’s profile was then operated by her mother. She recorded the conversation and the IP address of Mr Spark. The police then obtained a search warrant, requiring Telecom to identify the account holder using this IP address. The data provided by Telecom identified Mr Spark as the IP user.

[4] A search warrant, executed on 24 April 2006, permitted a search of Mr Spark’s residential address for objectionable material. The following were seized under the warrant: a camera; palm pilot; 12 CD-ROM discs; 21 diskettes; a laptop computer; and a desktop computer.

[5] The desktop computer was protected by passwords. Mr Spark sought to have all of the evidence obtained…

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 Spark

Details

AGLC: R v Spark [2009] NZCA 345
Case: [2009] NZCA 345
Decision Date: 6 August 2009

CaseChat Overview and Summary

The appellant, Mr Spark, was found guilty of making and possessing objectionable publications in the form of logs of his sexualised online chats with minors, and sexually explicit images of children. He appealed against his convictions and sentence. The court considered several arguments advanced on his behalf, including the proposition that the material in question did not amount to a publication for the purposes of the Films, Videos and Publications Classification Act 1993 because it was not intended for public distribution. The court rejected this argument, finding that the definition of publication did not require availability to the public. The court also found that the convictions on nine of the ten counts of making an objectionable publication should stand, despite a misdirection on the knowledge element of the offence, because the evidence of guilt was overwhelming. The court dismissed the appeal against sentence, finding that the sentence of two and a half years imprisonment was not manifestly excessive.

Orders