DANIEL GEORGE v R [2022] NZSC 128

DANIEL GEORGE v R [2022] NZSC 128 [7 November 2022]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFAPPLICANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT2011 REMAINS IN FORCE. SEE [2021] NZHC 2681. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 69/2022[2022] NZSC 128BETWEEN DANIEL GEORGEApplicantAND THE KINGRespondentCourt: O'Regan, Ellen France and Williams JJCounsel: A M S Williams for ApplicantB J Thompson for RespondentJudgment: 7 November 2022JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] The applicant shared a link with a number of other people to the manifesto ofBrenton Tarrant. Mr Tarrant undertook a terrorist attack on two Christchurch mosqueson 15 March 2019. When clicked on, the link took recipients to a full copy of themanifesto. The applicant was subsequently charged with seven charges of distributingan objectionable publication under the Films, Videos, and Publications ClassificationAct 1993 (the Classification Act).1[2] The applicant sought to have the objectionable publication charges dismissedunder s 147 of the Criminal Procedure Act 2011. In the District Court, Judge Kellardismissed the s 147 application.2 Following a sentence indication, the applicantpleaded guilty to, relevantly, one representative charge of distributing an objectionablepublication. After sentencing, he unsuccessfully challenged this conviction in theCourt of Appeal.3 He has now applied for leave to appeal to this Court.Background[3] The relevant offence is created by the combination of ss 123(1)(d) and 124(1)of the Classification Act. Section 123(1)(d) makes it an offence to supply or distributean objectionable publication to any other person. Section 124(1) prohibits the carryingout of any act mentioned in s 123(1), "knowing or having reasonable cause to believethat the publication is objectionable". Every person who commits an offence againsts 124(1) is, relevantly, liable to imprisonment for a term not exceeding 14 years. Here,the focus of the proposed appeal is on the conduct element described in s 123(1)(d).We need not say anything more in relation to s 124(1).[4] "Distribution" is defined in s 122(1) in these terms:4(1) In sections 123 to 132, unless the context otherwise requires,distribute, in relation to a publication, means—(a) to deliver, give, or offer the publication; or(b) to provide access to the publication .1 Additionally, he was charged with threatening to kill. That charge is not in issue.2 R v [George] [2021] NZDC 17763 [DC judgment].3 George v R [2022] NZCA 242 (Clifford, Venning and Moore JJ) [CA judgment]. The applicanthas interim name suppression and "George" is the pseudonym adopted in the Courts below toprotect his identity: see George v R [2021] NZHC 2681. The High Court in granting suppressionnoted the order applied until 16 December 2022 at which point it would be for the District Courtto decide whether to extend interim suppression or to make a permanent order: at [55].4 Section 122(1)(b) includes an example. The Courts below cite the example given in the versionof the legislation that applied at the time the representative charge was laid, namely, "to makeavailable digital content that is or includes the publication by means of a public data network".The example in the version in force at time of the offending is differently worded but nothing turnson this difference.[5] Section 122(3) specifies the mere provision of a means, physical or digital(such as broadband), of delivery or transmission does not constitute distribution.[6] Further, the Classification Act was amended in 2015 by adding s 131(2A)which provides that:5(2A) A person can have an electronic publication in that person'spossession for the purposes of subsection (1) even though thatperson's actual or potential physical custody or control of thepublication is not, or does not include, that person intentionally orknowingly using a computer or other electronic device to save thepublication (or a copy of it).[7] In dismissing the appeal, the Court of Appeal accepted the approach of theDistrict Court Judge that possession is not an element of the offence. In this contextthe Court noted, amongst other matters, that the wording of the relevant provisions donot indicate possession is an element; possession of an objectionable publication forthe purposes of supply or distribution is a separate offence; and if possession was anelement it would have been referred to in s 122(2) which defines circumstances thatdo not constitute distribution.6[8] The Court also saw the 2015 amendment as providing "strong support" forJudge Kellar's alternative conclusion, namely, that if possession was an element, theapplicant possessed the manifesto.7[9] As to whether the applicant had distributed the manifesto, the Court of Appealagreed with the District Court that the applicant "had either offered the Manifesto orprovided access to it".8 The Court referred to the English dictionary meaning of theacronym URL and considered that supported the District Court's conclusion. Thatwas because:9 the URL provides access to an internet document by constituting an addressexpressed in a format used by a browser to locate the document. Thus, by5 Section 131(2A) was inserted into the Classification Act by s 5(3) of the Films, Videos, andPublications Classification (Objectionable Publications) Amendment Act 2015.6 CA judgment, above n 3, at [29]–[30].7 At [33].8 At [36]–[37].9 At [39]."clicking" on the URL the user accesses the document. Sending the URL byway of a message, as Mr George did, provides that access.The proposed appeal[10] The proposed appeal to this Court would reprise the arguments rejected by theCourt of Appeal, namely:(a) that possession was an element of the offence; and(b) that the applicant did not distribute the manifesto either by offering itor providing access to it.Our assessment[11] We see the proposed appeal as having insufficient prospects of success tojustify a grant of leave. Assuming, without deciding, that the Court should construethe statue by reading in a requirement to prove possession as an element of the offence,the argument would fail on the facts. It is not possible to contend that the applicantdid not possess the manifesto because, as Judge Kellar found, he had actual (orpotential) control over the publication at the relevant time.10[12] As to the argument on distribution, nothing raised by the applicant calls intoquestion the assessment by the Court of Appeal on this issue. As the respondentsubmits, in reality, by sending the link the applicant provided his associates "withimmediate and direct access to the manifesto in its entirety" and did so with thepurpose of sharing the publication.[13] For these reasons, there is also no appearance of a miscarriage of justice.11[14] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent10 DC judgment, above n 2, at [20]–[21].11 Senior Courts Act 2016, s 74(2)(b).