R v Spark
[2009] NZCA 345
•6 August 2009
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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 as a result of the voluntary disclosure of his passwords ruled inadmissible as being unfairly obtained. In the District Court, Judge MacAskill ruled against that application. This Court dismissed an appeal from that ruling: [2008] NZCA 561.
[6] Once the passwords were obtained, a directory labelled “MINE” was located on the computer. It had 59 subdirectories, mostly labelled after chat contacts Mr Spark had met online. Each subdirectory contained a Word document, which recorded the content of chats Mr Spark had conducted with the girl the subdirectory was named after. The subdirectory also contained any photos the girl had sent to Mr Spark. Within each chat log document Mr Spark had added a summary, detailing the girl’s age, address, measurements, what their online relationship had progressed to, and any sexual acts she had undertaken at his request. The records of these chat logs in “MINE” were the subject of the ten counts of making objectionable publications.
[7] The fourteen counts of possessing objectionable publications related principally to 81 objectionable images depicting the sexual exploitation of children and young persons, or exploitation of their nudity; and chat logs and objectionable stories written by Mr Spark about sexual acts between an adult male and various young girls. Counts 11 and 12 relate to records of chats on MSN Messenger found
on the desktop computer. Counts 13 and 14 relate to stories written by Mr Spark, and stored on a diskette in a locked briefcase in Mr Spark’s office.
[8] In a video interview on the day the search warrant was executed, Mr Spark agreed that the material was all his, but denied that the content was objectionable. He viewed his activities as harmless because he never physically touched the girls, and because they were always free to leave the chat room or “block” Mr Spark’s contact.
[9] At trial Mr Spark continued to contest the objectionable nature of the chats and images. This was a hopeless defence point, because the items had been classified as objectionable by the Office of Film and Literature Classification (the Classification Office), the authorised expert body under s 4 of the Act. These findings could only be reviewed in the manner prescribed under the Act, not by post- conviction appeal.
[10] The central ground of appeal advanced by Ms Vidal is that the documents the appellant was accused of making or possessing were not “publications” for the purposes of the Act. This was because he did not have the publications for public distribution but rather for his own private use.
The Films, Videos and Publications Classification Act 1993
[11] The Act is expressed by its long title to be “[a]n Act to consolidate and amend the law relating to the censoring of films, videos, books, and other publications; and to repeal the Indecent Publications Act 1963, the Films Act 1983, and the Video Recordings Act 1987”.
[12] A “publication” is defined in s 2 to mean:
(a)any film, book, sound recording, picture, newspaper, photograph, photographic negative, photographic plate, or photographic slide:
(b) any print or writing:
(c) a paper or other thing that has printed or impressed upon it, or otherwise shown upon it, 1 or more (or a combination of 1 or more) images, representations, signs, statements, or words:
(d)a thing (including, but not limited to, a disc, or an electronic or computer file) on which is recorded or stored information that, by the use of a computer or other electronic device, is capable of being reproduced or shown as 1 or more (or a combination of 1 or more) images, representations, signs, statements, or words.
[13] The term “objectionable” has the meaning given to it by s 3(1) of the Act:
… a publication is objectionable if it describes, depicts, expresses, or otherwise deals with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of the publication is likely to be injurious to the public good.
Section s 3(3) provides:
In determining, for the purposes of this Act, whether or not any publication (other than a publication to which subsection (2) applies) is objectionable or should in accordance with section 23(2) be given a classification other than objectionable, particular weight shall be given to the extent and degree to which, and the manner in which, the publication—
(a) describes, depicts, or otherwise deals with—
(i)acts of torture, the infliction of serious physical harm, or acts of significant cruelty:
(ii) sexual violence or sexual coercion, or violence or coercion in association with sexual conduct:
(iii) other sexual or physical conduct of a degrading or dehumanising or demeaning nature:
(iv) sexual conduct with or by children, or young persons, or both:
(v) physical conduct in which sexual satisfaction is derived from inflicting or suffering cruelty or pain:
(b) exploits the nudity of children, or young persons, or both: (c) degrades or dehumanises or demeans any person:
(d) promotes or encourages criminal acts or acts of terrorism:
(e) represents (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of
discrimination specified in section 21(1) of the Human Rights Act
1993.
[14] If a publication is classified as objectionable then certain offences are created by Part 8 of the Act. It is important to appreciate that these offences run at two levels.
[15] First, s 123 creates offences of strict liability relating to making, supplying or distributing an objectionable publication (s 123(1)) regardless of whether the defendant had knowledge or had no reasonable cause to believe that the publication to which the charge relates was objectionable (s 123(3)). Under these strict liability offences a fine not exceeding $10,000 can be imposed in the case of an individual, or
$30,000 in the case of a corporation.
[16] The second, or higher, tier offences are created by s 124 of the Act. They arise where a person commits one of the prohibited acts in s 123(1) knowing or having reasonable cause to believe that the publication is objectionable. In such instances an individual can be imprisoned for a term not exceeding ten years, or a corporation can be fined up to $200,000. These are “knowing” offences.
[17] In this case, Mr Spark was charged with the higher tier offences, which in technical terms require a s 123(1) actus reus but a s 124(1) mens rea (which is, more simply, a particular state of knowledge).
[18] In some instances, Mr Spark was also charged under ss 131 and 131A(1) of the Act, which creates both a lower tier offence of possession without lawful authority or excuse, and a higher tier “knowing” offence. The knowledge requirement for the latter charge in s 131A(1) of the Act is, again, “knowing or having reasonable cause to believe that the publication is objectionable”. The maximum period of imprisonment for an individual in this instance is five years, or a fine not exceeding $100,000 in the case of a body corporate.
[19] It will be observed that the concern which Parliament plainly had in contemplation was that publications falling within the meaning of the word “objectionable”, even those made unknowingly, could attract criminal liability.
That, of course, was for Parliament to prescribe. But Parliament also wished to cast its net very widely, much as in the way it has proscribed drug offending. Mr Hamlin, with respect correctly, noted that there are some analogies between the structure of this legislation and the structure of the New Zealand drug legislation. Parliament also determined that the knowledge based offences were to be viewed very seriously: these are significant crimes.
The publication issue
[20] It appears that from the outset Mr Spark has always had the view that what he was doing he was doing entirely for himself. In his view, he was not publishing anything. Seemingly, he also entertains the view that these are “victimless” incidents.
[21] Ms Vidal has sturdily maintained on his behalf that, as a matter of law, the items which Mr Spark was accused of making or possessing were not “publications” within the meaning of the Act. And if the items are not publications, then there was no jurisdiction to charge Mr Spark, and all the convictions would have to be quashed.
[22] Ms Vidal’s basic proposition, as expressed in her oral submissions, is that in order to be a publication within the meaning of the Act, the material in question must be available to the public. The chain of reasoning for this proposition begins with the Long Title to the Act, which indicates a prospective coverage. Counsel noted in particular the word “censoring” in the Long Title, which might be said to import an external aspect. Secondly, counsel noted that the structure of the Act is that a publication has to be submitted to the Classification Office. That office has to give a classification of publications as a matter of expert judgment (s 4). Thirdly, counsel relied on s 3(1) of the Act, and in particular the words that a publication is objectionable if “the availability of the publication is likely to be injurious to the public good” (emphasis added). Ms Vidal argued that all of these things, but particularly the third factor, point to a construction of the Act that should lead to the conclusion that because Mr Spark was keeping these things for himself, they did not amount to publications for the purposes of the Act.
[23] Mr Hamlin submitted that the requirements of s 123(1)(a) of the Act are satisfied if an accused “makes an objectionable publication” (emphasis added). The test in s 3(1) is framed in terms of whether the publication is likely to be injurious to the public good. The section does not require that the publications are in fact made public, and in fact cause injury to the public good. Further, the elements of the offence do not require that “distribution” has taken place in order for the offender to be liable. For this very reason, the offence of “distributing” an objectionable publication is an entirely separate offence under s 123(1)(b). The distinction between “making” and “possessing” a publication is maintained in the separate offences for the latter category of offending under ss 131 and 131A. Similarly, there is no requirement that distribution has occurred in order for the requirements of the possession offences to be fulfilled.
[24] The Classification Office has exclusive jurisdiction to determine whether a publication is objectionable. In this case, the Classification Office considered individually all of the documents which were utilised in evidence against Mr Spark at his trial. That Office found the documents were objectionable publications because they tended to promote or support the exploitation of children, or young persons, for sexual purposes (s 3(2)(a)). Hence, the fact that the publications were intended for private use – if that assumption is made in Mr Spark’s favour – still did not prevent them from being injurious to the public good. The publication need only be something likely to be injurious to the public good, rather than a publication that has in fact been introduced to the general public or some section of it and caused harm.
[25] In our view, the construction placed on the statute by the Crown is correct. We add two further points. First, the definition of publication provided in the Act (see [12] above) contains no requirement of availability, nor does it even hint at such a requirement. Secondly, there are obvious problems with defining publication by reference to the state of mind of the person making the publication or possessing it. Their state of mind can change, or someone else with a different viewpoint may come to possess it. Theoretically, if Ms Vidal were correct, material could change from being a publication to not being one, or vice versa. That seems unsatisfactory, and is unlikely to have been the intended definition. This appeal point is dismissed.
[26] We should record some argument which went to the New Zealand Bill of Rights Act 1990 (BORA), although we do not consider it affects the disposition of this case.
[27] Ms Vidal relied on the proposition that if more than one construction of the Act is properly open, having regard to BORA, the construction which is least inimical to freedom of thought should be adopted. As a general proposition, that is undoubtedly correct. But of course it can only come into play if there is doubt about the meaning of a given statute.
[28] In her written submissions, Ms Vidal also advanced – though rather more faintly – an argument that interpreting the definition of “publication” to include publications that have not been distributed gives rise to a breach of ss 13 and 14 of BORA. She raised the spectre of private diary entries, or highly salacious material merely written down by an individual and kept secure. This, of course, is a perpetual concern in relation to censorship. Indeed, it is notorious that some things of that character which subsequently were considered to be important literature were initially proscribed, and their authors prosecuted, in some jurisdictions.
[29] Whilst we can appreciate those larger concerns of principle, they do not arise in this particular case. This is because the Classification Office quite properly had overt regard to the decision of this Court in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 at [27] (CA). In that case, this Court stated that it is inevitable in a censorship context that some limit will be placed on freedom of expression. The combined effect of ss 5 and 6 of BORA results in a need to put on the words “promotes or supports” (in the s 3(2) definition of “objectionable”) such available meaning as impinges as little as possible on freedom of expression. This Court further said (at [29]):
Description and depiction … of a prohibited activity do not of themselves necessarily amount to promotion of or support for that activity. There must be something about the way the prohibited activity is described, depicted or otherwise dealt with, which can fairly be said to have the effect of promoting or supporting that activity [for the purposes of s 3 of the Act].
[30] The Classification Office expressly considered the BORA aspect in its reports on the appropriate classification of the evidence against Mr Spark. The Office found that the evidence promoted or supported the sexual exploitation of children and young persons. That holding cannot be challenged on this post- conviction appeal (see [9] above).
[31] The next point is that s 4 of BORA prohibits an enactment from being ineffective solely on the basis that it is inconsistent with BORA. Therefore, any breach of ss 13 or 14 of BORA would not be sufficient to prevent the application of the provisions of the Act we are considering.
[32] Ms Vidal indicated in her oral submissions that it was not being contended that this was an unjustifiable restriction in a free and democratic society. And no evidence was ever led on this point. Further, it is not clear to us why a definition of publication that does not contain an element of availability would constitute a breach of freedom of expression. The definition of publication does not of itself create any limit. Of course an Act must be read in context and sometimes a definition will, in reality, also constitute the restriction. But within this Act there are other operative provisions, such as the definition of objectionable, that more truly constitute the limit. Moonen has already addressed the relationship between those provisions and BORA.
[33] In short, to the extent that the provisions of this Act impinge upon rights contained in BORA, that has to be taken as being an outcome consistent with Parliament’s intention: that publications held to fall within s 3 of the Act are objectionable.
Evidence illegally obtained?
[34] At a pre-trial stage of the proceedings, Mr Spark maintained that the password he provided to the police, which the police then used to access his computer and obtain evidence against him, was obtained by oppression in breach of s
29 of the Evidence Act 2006. It was therefore improperly obtained for the purposes of s 30(5) of the Evidence Act and should be excluded under the s 30(2) balancing
test. Judge MacAskill dismissed this argument, a ruling which was upheld by this
Court on appeal (see [5] above).
[35] In this Court, Ms Vidal changed tack somewhat by maintaining that Mr Spark had been forced into self-incrimination. There is nothing in this point. This Court earlier accepted that the police were persistent in requesting the passwords, but it accepted the passwords were divulged voluntarily (at [16]). Mr Spark had asked if the police would be more lenient on him if he did so and after his wife requested that he supply the passwords. This is far from an oppression or self-incrimination situation, let alone a miscarriage of justice point. This appeal point too is dismissed.
“Making” and Count 10
[36] It was objected that, at least in some respects, Mr Spark had not “made” some publications. Kellet v Police (2005) 21 CRNZ 743 at [18]-[19] (HC) establishes that all that is required on a “making” charge under the Act is editorial involvement which goes beyond merely copying. There must be some kind of compilation or creative endeavour. There was evidence for Counts 1 to 9 that Mr Spark had chatted to the various girls online. He had added summaries about the girls’ characteristics and the topics discussed at the beginning of each chat log within the time period charged.
[37] However, in relation to Count 10, the Crown responsibly accepts that the chat activity occurred prior to February 2005 but the evidence of the document being transferred to Mr Spark’s computer was on 1 July 2005. A mere transfer may not amount to the degree of editorial involvement envisaged by Kellet. The conviction on that charge is therefore quashed and no retrial is ordered.
The appropriate directions on “knowledge”
[38] Section 124(1) of the Act provides that “every person commits an offence against this Act who does any act mentioned in section 123(1), knowing or having reasonable cause to believe that the publication is objectionable.”
[39] Ms Vidal contends that the Judge incorrectly directed the jury in his summing up on what the Crown was required to establish in terms of the knowledge requirement in s 124(1). This appeal point has its difficulties and is of some significance to trial judges.
[40] The passage of the Judge’s summing up to the jury that Ms Vidal seeks to impugn is as follows:
[22] I have already indicated to you that whether or not a publication is objectionable is a matter of law and this is determined by another body other than yourself. So there is no profit in debating that particular issue about whether it is an objectionable publication or not because in each case you have a certificate from the appropriate body indicating that it is so …
[23] … It is not required, and I stress this, that the accused had to know at the dates alleged that this material if submitting then to the classification office would have an objectionable rating. What is required is that he has some knowledge of the quality of the contents of the particular document and would have reasonable cause or knowledge to believe that that type of content is likely to be the sort of material that would be regarded as objectionable.
(Emphasis added.)
[41] It is instructive to also consider the Judge’s pre-trial ruling on this point, in the context of considering the admissibility of the Classification Office certification (Ruling No 2 17 March 2009 at [8]):
[8] It is my view that the jury will need to be instructed that the issue for them in relation to charges of making an objectionable publication is whether the accused in fact made the document or was party to it. Secondly, whether in law it has been classified as “objectionable”, and thirdly, whether he knew or had reasonable cause to believe the publication was objectionable. The last element requires proof that he knew something of the qualities of the document that was being made. If the Crown can point to matters which are said to make it objectionable, that term being defined in the statute, then the jury could convict prior [if] they are satisfied he was aware of the contents.
[42] This is apparently the first occasion on which there has been appellate consideration of the way in which juries should be directed on the knowledge requirement under s 124(1). We address our concerns under the three heads articulated by Judge Saunders:
(i) Whether the accused in fact made the document or was party to it.
(ii) Whether in law it has been classified as “objectionable”.
(iii)Whether he knew or had reasonable cause to believe the publication was objectionable.
Whether the accused in fact made the document or was party to it
[43] First, the Crown must prove a s 123(1) act. Whether it has proved that element is for the jury.
Whether in law it has been classified as “objectionable”
[44] Secondly, the Crown must prove that the publication is objectionable in law. The Crown does this by producing the Classification Office certification.
Whether the accused knew or had reasonable cause to believe the publication was objectionable
[45] Thirdly, the Crown has to either show that there is actual knowledge that the publication is objectionable, which might occur with respect to recidivist offenders; or that the defendant has reasonable cause to believe that the publication is objectionable.
[46] Turning to the “reasonable cause to believe” formulation, it is clear that this is an objective test. The question is not whether the accused believed or suspected the publication was objectionable but, rather, whether objective facts existed that should have given rise to such knowledge or suspicion on his part.
[47] There is real difficulty in giving effect to the word “objectionable” vis-à-vis the knowledge of the offender, given that the Classification Office certification is conclusive evidence of objectionability: see s 41 of the Act.
[48] It seems unlikely that Parliament would have intended s 124(1) to mean that the offender must have “reasonable cause to believe” that the Classification Office had certified a given publication as objectionable.
[49] The other alternative is to focus on the statutory definition of objectionable in s 3(1) or the factors whereby a publication shall be deemed objectionable in s 3(2). In this case, the argument would run that Mr Spark must have had reasonable cause to believe that the publications depicted sex in such a manner that the availability of the publication would likely be injurious to the public good (s 3(1)). Alternatively, Mr Spark must have had reasonable cause to believe that the publications promoted or supported the exploitation of children for sexual purposes (s 3(2)(a)), this being the ground of objectionability relied upon by the Classification Office.
[50] The summary of reasons provided with the Classification Office certificate, but not put before the jury, obviously considers the s 3 reasons in coming to its conclusion. For instance, it stated, “the publication is a computer text file that promotes and supports the exploitation of children and young persons for sexual purposes.” This was the heart of the concern in the Classification Office.
[51] The concern with relying on the s 3 definition of objectionability in assessing what an offender had reasonable cause to believe in terms of s 124(1) is that there is the potential for the jury to second-guess the Classification Office’s decision. The counter-argument would be that an inquiry into the accused’s culpability in relation to a publication does not alter the Office’s classification that the publication is objectionable in law.
[52] On balance, we consider the correct approach is to direct the jury that "reasonable cause to believe" relates to the ground relied upon by the Classification Office in its objectionability classification. The scheme of the Act is to place issues of objectionability with the Office; its decision is determinative. We consider it is consistent with that fact to define this requirement of awareness of objectionability in terms of the Office's assessment, rather than the prior general definition of objectionable. It also provides the jury with a manageable inquiry which starts from the proposition that the publication is objectionable for stated reasons, and asks the
jury whether the accused should have realised those characteristics (for example, exploitation of children for sexual purposes) were present in the publication.
[53] We are concerned that the Judge’s summing up – “that type of content is likely to be the sort of material that would be regarded as objectionable” (at [23]) – does not provide a yardstick to the jury as to objectionability. In Mr Spark’s case, it is our view that the jury should have been told that the accused, in order to be found guilty, must have known, or had reasonable cause to believe, that the item complained of promoted or supported the exploitation of children or young persons, or both, for sexual purposes.
[54] We are of the view that the failure of the Judge to give the jury a yardstick as to objectionability, having said that objectionability is a matter of law to be determined by the experts (at [22]), was a material misdirection on the knowledge element of these offences. We will consider the consequences, in law, of this misdirection later in this judgment (see [64]-[73] below).
Admitting expert classification evidence without calling the expert
[55] We record that this challenge was abandoned at the hearing when Ms Vidal accepted that the evidence sought to be impugned did not go to the jury.
Miscellaneous points
[56] Several further short points were also advanced in support of the appeal.
[57] First, a Crown witness, Inspector Duke, accepted in cross-examination that there was no proof that the accused had viewed the photographs that he was said to have been in possession of. Ms Vidal put the appeal point this way: “How can a jury possibly determine that an accused person knew or ought reasonably to have known that the content of a photograph was objectionable, when there is no proof of the accused having even viewed the photograph?” It was therefore submitted that the verdicts on Counts 16 to 24 cannot be supported by the evidence.
[58] The Crown relied on Meyrick v Police HC HAM CRI 2005-419-58 31 July
2007, which establishes that it is not required that the appellant had a memory of each image at any stage, but only that he was aware of the general objectionable nature of the contents on his computer.
[59] We agree with the Crown that it is not required that the accused had viewed each and every objectionable image. Of course, the meticulous organisation of Mr Spark’s computer drive would have given reasonable grounds for the jury to accept that the appellant had viewed the images. Some of the photographs were found in sub-directories with corresponding chat logs. Given that the girls the appellant had chatted with had sent images of themselves which Mr Spark had then organised in his computer, it was reasonable for the jury to infer that he had viewed the images or at least had the knowledge that their contents were objectionable.
[60] Secondly, in relation to Counts 13 to 15, Ms Vidal submitted there was no proof of the requisite knowledge to establish possession of the relevant documents on Mr Spark’s diskette. The reasoning in the preceding paragraph applies to this submission also.
[61] Thirdly, it was said that it was wrong for the Crown and the Judge to refer to photographs that the accused had sent of himself. Those references gave rise to unfair prejudice to the accused, in circumstances where the photographs should have been excluded pursuant to s 8 of the Evidence Act. It seems quite clear on the evidence that Mr Spark had sent photographs of himself naked and of his erect penis to girls he was chatting to on the internet. The photographs themselves did not form the basis of any charges as the Crown would have had to prove the recipients were aged under 16 and many were overseas. The photographs clearly identify the appellant, and the background in the photographs matches the scene photographs of the appellant’s house. Accordingly, the photographs the appellant took of himself were relevant to proving the identity of the person making the chat logs. There is nothing in this issue.
[62] Fourthly, Ms Vidal made the makeweight point that the jury took less than an hour to reach a verdict in what is said to have been a very complex case. She said
this shows the verdict to have been unreasonable. The jury process is inscrutable. We know from judicial experience that, in practice, juries may take a very short time even in complex cases, and may also take a long time in simple cases. It would have to be a very unusual case where the time taken is relevant to, let alone dispositive, of a miscarriage point. We do not have to decide the parameters of this point. Further, there was a very strong Crown case against Mr Spark.
[63] These appeal points are dismissed.
The proviso
[64] We have reached a point where all of the grounds of appeal against conviction have been dismissed, save that relating to Count 10, and with respect to the summing up direction on knowledge.
[65] A misdirection as to the element of a crime, and a fortiori with respect to a knowledge element, will almost always result in a miscarriage of justice which will result in the convictions being set aside.
[66] If the convictions are to be sustained in this case, it can only be by the application of the proviso to s 385 of the Crimes Act 1961. Section 385 relevantly provides that on appeal, this Court must allow the appeal “if it is of the opinion that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law” (s 385(1)(b)). However, if this Court “considers that no substantial miscarriage of justice has actually occurred”, it may nevertheless uphold the convictions.
[67] What is commonly referred to as “the proviso” has long troubled our courts. Fortunately, we now have the recent assistance, in close order, of the decisions of the Supreme Court of New Zealand in Matenga v R [2009] NZSC 18 and the Judicial Committee of the Privy Council in Barlow v R [2009] UKPC 30. It is however unnecessary for us to say anything further about Barlow for, as it transpires, their Lordships elected to proceed in the manner suggested by the Supreme Court of New Zealand in Matenga, at least in a s 385(1)(c) case (at [22]).
[68] In this case we are concerned with s 385(1)(b). However, in relation to that provision, Blanchard J observed in Matenga (at [10]):
[10] That leaves only paras (b) and (c). Even in relation to para (b), however, the language is strained. The Court is directed to allow the appeal if it is of the opinion that the judgment, i.e the verdict, “should be set aside” on the ground of a wrong decision on any question of law; yet despite being of the opinion that the judgment should be set aside, the Court may dismiss the appeal under the proviso. The Court may uphold a conviction where the issue of law must certainly have been immaterial to the guilty verdict, for example, an incorrect direction by the Judge on a peripheral issue which the appeal Court considers could not have influenced the jury. However, in such a case it might be expected that the Court would not have formed the opinion that the conviction should be set aside on the ground of the wrong decision. Nevertheless, it has long been accepted that para (b) is not to be read as having that literal effect and that the proviso can be applied in relation to an error of law falling within its scope. If it were otherwise, different approaches might be required as between paras (b) and (c) which would add an additional complication to what is already a troublesome provision.
[69] Given that the proviso is at least in principle applicable to an error of law, how should the Court proceed? In Matenga, Blanchard J for the Court said (at [29]):
Following conviction, after a fair trial by jury, Parliament has given the appeal courts an ability to uphold the conviction despite there being a miscarriage of justice in some respect. While the jury is in general terms the arbiter of guilt in our system of criminal justice, the very existence of the proviso demonstrates that Parliament intended the Judges sitting on the appeal to be the ultimate arbiters of guilt in circumstances in which the proviso applies. The general rule that guilt is determined by a jury rather than by Judges does, however, mean that the proviso should be applied only if there is no room for doubt about the guilt of the appellant; and, as we will mention again below, considerable caution is necessary before resorting to the proviso when the ultimate issues depend, as they frequently will, on the assessment of witnesses.
[70] Some qualifications were expressed. First, there must be a true miscarriage which is “capable of affecting the result of the trial” (at [31]): there is not a miscarriage in an inconsequential or immaterial mistake or irregularity. Secondly, the question is “whether that potentially adverse effect on the result may actually, that is, in reality, have occurred” (at [31]). As Blanchard J put it, the guilty verdict must be “inevitable, in the sense of being the only reasonably possible verdict, on that evidence … the Court must itself feel sure of the guilt of the accused” (at [31]). Before applying the proviso, the Court must also be satisfied that the trial was fair, but there is no issue under that head here.
[71] In practically all cases – although as we think this case demonstrates not all – a failure to get the knowledge element right in directing a jury will result in a conviction being overturned. What has happened in this case however is that the jury was not told how it should decide whether the Crown had proved that Mr Spark had reasonable cause to believe that the material tended to promote or support the exploitation of children or young persons for sexual purposes. If it had been told in the terms we suggest at [53] above, it seems incontrovertible on the evidence that the jury would have been sure of Mr Spark’s guilt. In terms of the Matenga approach, our own view on whether there could be a finding of guilt is that it was inevitable, notwithstanding the erroneous summing up on the direction point. Mr Spark had (at least) reasonable cause to believe that the material was exploiting young persons for sexual purposes. We say this in full appreciation of the fact that it is “knowledge” which takes these offences from a low level, non-imprisonable offence, to a much higher order of criminal culpability.
[72] Therefore, notwithstanding the misdirection, the convictions other than
Count 10 are upheld.
[73] We should perhaps record that if we are wrong on the application of the proviso, we would have set the convictions aside (other than Count 10) and directed a retrial on those counts.
Sentence appeal
[74] The sentence appeal was dealt with only briefly both in the written submissions and at the hearing.
[75] Ms Vidal emphasised that there are no guideline judgments in New Zealand as to sentencing an accused for the making of objectionable material where the content of that material is limited to words only. The United Kingdom Definitive Guideline on Sentencing under the Sexual Offences Act 2003 refers to images, not words. She emphasised that all involvement in the making process was consensual. Because there had been no assessment made as to public risk, Ms Vidal rhetorically asked how imprisonment could be justified as the least restrictive sentence. She also
stressed the age and lack of previous convictions of the appellant. In her submission, the appropriate penalty ought to have been a community-based sentence.
[76] Mr Hamlin said that the United Kingdom Definitive Guideline was nevertheless useful as suggesting five levels of seriousness for sentencing involving pornographic images. These range from images depicting erotic posing with no sexual activity through to the grossest kinds of cases such as sadism or penetration of, or by, an animal. The argument was one by analogy. Mr Hamlin also submitted that the content of the objectionable publications fully justified a starting point of three years imprisonment. Because content involving penetrative conduct between an adult and a child would fall within “level 4” sexual activity, the second to highest point on the scale under the Guideline, attracting a starting point of four to nine years imprisonment, it was submitted that the starting point of three years imprisonment in the present case was conservative.
[77] We were also referred to R v Clode [2009] 1 NZLR 312 (CA) and R v Zhu [2007] NZCA 470. The appellant in Clode pleaded guilty to making and distributing objectionable publications in the form of three pornographic videos from his own indecent assaults on three children. This Court thought that a starting point of higher than two years was appropriate because the victims were under 13 years of age. In the result, there was a starting point of three and a half years imprisonment with an additional 12 months for the counts of possession, and a discount of 16 months for the guilty pleas, resulting in an end sentence of three years and two months imprisonment.
[78] The offender in Zhu pleaded guilty to ten counts of possession of an objectionable publication and four counts of supply. The objectionable publications were DVDs, which were violent and depicted sadism and full sexual intercourse with children under the age of 10. This Court emphasised that the images were at the top of the range of seriousness and that there was a profit motive in the DVDs. This Court upheld the sentencing Judge’s starting point of four and a half years imprisonment.
[79] We do not consider that the sentence of two and a half years imprisonment, arrived at on a starting point of three years, with six months discount for mitigating factors, is manifestly excessive. The starting point is certainly not out of line with existing authority (admittedly in cognate areas). Moreover, s 132A(2)(a) of the Act specifically requires the sentencing Judge to take into account as an aggravating factor that an offence is objectionable because it promotes or supports, or tends to promote or support, the exploitation of children, or young persons, or both, for sexual purposes. This provision was not referred to by the sentencing Judge.
[80] The six month discount in mitigation was close to a 17 per cent discount for previous good character and the circumstances to which Mr Spark has been reduced as a result of his offending. It could well be thought that that discount was generous given that Mr Spark’s course of offending had stretched out over a period of several years. He was, quite simply, a serial offender. That may well be thought to reflect the sort of risk he poses to the community, at least absent suitable rehabilitation. It is to be hoped that such rehabilitation can be afforded to him whilst he is incarcerated.
[81] The sentence appeal is also dismissed.
Solicitors:
Crown Law Office, Wellington
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