R (CA89/2018) v R [2019] NZCA 638

R (CA89/2018) v R [2019] NZCA 638 [12 December 2019]NOTE: THE COURT OF APPEAL ORDER PROHIBITING PUBLICATIONOF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFAPPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011REMAINS IN FORCE.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA89/2018[2019] NZCA 638BETWEEN R (CA89/2018)AppellantAND THE QUEENRespondentHearing: 16 July and 6 September 2019Court: Collins, Simon France and Lang JJCounsel: S J Gray for AppellantJ E L Carruthers for RespondentJudgment: 12 December 2019 at 11.30 amJUDGMENT OF THE COURTA The applications for leave to adduce further evidence are granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Earlier this year, after being advised of the disclosure of further evidence, thisCourt exercised the jurisdiction identified in R v Smith,1 and directed that Mr R'sappeal be reopened.2Facts[2] Mr R was convicted following a jury trial on two charges of sexual offendingagainst a 12-year-old family member, which included inducing her to touch his penisand having her put his penis in her mouth.[3] Mr R arranged for the complainant to come to his bedroom. Initially it was soshe could massage his back. He asked her if she wanted to earn some money. Mr Rthen showed her a video which involved a woman masturbating a man. He askedthe complainant to do the same, which she did. He then showed her a video of oralsex occurring and again requested her to do the same, which she did.[4] The complainant became upset and left the room. She made a call to the police,but interrupted her call when she heard Mr R coming to her room and before she couldgive an address. The police were unable to identify the address so there wasno response at the time. The call, however, fixes the time of the alleged offending.It was made on 30 September 2015 at 11.57 am. The complainant later complained toa teacher.The contested evidence[5] At issue on the first appeal and again in this appeal is the reliability of twoitems of circumstantial evidence led by the Crown. They are both sourced in Mr R'sphone.1 R v Smith [2003] 3 NZLR 617 (CA).2 R (CA89/2018) v R [2019] NZCA 176 [Recall judgment]. See also the first appeal decision:R (CA89/2018) v R [2018] NZCA 341 [First appeal judgment].[6] The first is an entry within a YouTube application (app) on the phone. It isa search entry within the app on the word "maturbation" (sic) and, on the basis ofthe phone data, it was made at 11.28 am on 30 September 2015. This would make itan entry occurring 30 minutes prior to the complainant's phone call to the police.If attributable to Mr R, it is obviously corroborative of the complainant's evidence,showing, as it does, an interest in the type of activity the complainant describes.[7] The second is an entry on the phone's internet browser at 11.16 pm the sameevening on the pornography site Pornhub. The significance is that the complainantsays the videos shown to her by Mr R were from that site. Evidence that Mr R wasaccessing that site later on the same day is again obviously supportive of her evidence.[8] A trial issue was the reliability of the evidence concerning "maturbation".The police handling of the phone from the time of its subsequent seizure inFebruary 2016 had not followed best practice. It was argued by the defence that anydata obtained from the phone could not be relied upon. In particular, there could beno confidence that the "maturbation" search was carried out on Mr R's phone, or thatit was done at that date and time.[9] Concerns about the integrity of information sourced from the phone applyequally to both items of evidence. However, there was other evidence that made itclear Mr R was familiar with the pornography website in question and had frequentlyaccessed it. This was accepted by Mr R. Accordingly, we focus on the "maturbation"search.The handling of the phone[10] There is new evidence that a police officer connected the actual phone (ratherthan working on a digital copy) to the internet following its seizure and before it washanded over to the Police Forensic Unit. There is also evidence that the PoliceForensic Unit installed software onto the phone in order to gain access to its records.The latter technique is not regarded as incorrect practice but comes with risks.The former activity of the police officer in connecting the device to the internet shouldnot have happened.[11] Connecting the phone to the internet creates risks. First, any applications orsoftware that are set up to automatically update will do so once connected, so the dataon the phone will not be unchanged from how it was when seized. Second, ifthe internet connection is through a particular account, then other devices connectedto the same account, and programmed to synchronise, will do so. This may importdata from other devices onto the suspect's phone.[12] To go back in the timeline, the phone had been taken by consent on9 October 2015. The police had it then for five hours but did not clone it, nor connectit to the internet. It was returned to Mr R. The police then later obtained a warrant toseize it. It was taken pursuant to this warrant on 13 February 2016. The followingsubsequent interactions with the phone are what was known at trial, and on the firstappeal:3(a) When seized, the SIM card was removed and given to Mr R. The phonewas retained and was put on flight mode.(b) On 22 March 2016, a staff member from police forensics extractedsome data, but could not obtain the internet history.(c) On 14 July 2016 the officer in charge examined the phone, knowingno internet history had been obtained. The officer accessed the browserhistory and took photographs of it. The date range of the availablehistory was 26 January 2016 to 13 February 2016 when the phone wasseized.(d) On 8 March 2017 the same police officer again accessed the phone.He did not obtain more information, but his visit left "cookies".4 It wasthought the phone had not been connected to the internet.(e) On 17 August, Mr Son, a digital forensic expert, looked at the phone.He was asked to see if there was anything pertaining to the date of3 First appeal judgment, above n 2, at [9]–[10] and [28]–[29].4 Cookies are data used by an internet browser to save a user's preference.the alleged offending, 30 September 2015. Mr Son did a manualsearch, and then added new software. This software, known asa jailbreaker, allowed access to more data, including the two items ledin evidence. A cookie was created which indicates there was on thisoccasion an unexpected synchronisation event. The experts are unsurewhy it happened but agree it did.[13] It is helpful to note at this point that this second appeal has come about becauseit is now known this phone's interaction history is incomplete. It transpires the policeofficer had done more on 8 March 2017 than previously known. As noted, he hadconnected it to the internet using a personal hotspot, causing a synchronisation andupdating event. However, it is convenient first to consider the trial and initial appeal.The trial and initial appeal[14] Mr Son, the police forensic expert, explained that Mr R used a Google Chromeweb browser. This enabled all devices linked through the same internet account tosynchronise. Access history is saved to a synchronisation database.[15] An app such as the YouTube app containing the "maturbation" search isdifferent. It does not use the device's web browser, but creates its own connection.It was not set to synchronise by default. On that basis, and because the data relatingto the "maturbation" YouTube search was located on the phone's local storagedatabase, Mr Son said the "maturbation" search was created on the phone itself.[16] The defence also called a forensic expert, Mr Spence, who noted the situationwas complicated by the fact that Mr R had the phone and was using it for some timesubsequent to 30 September 2015. He was critical of some of the police interactionswith the phone subsequent to it being seized. More generally, Mr Spence said it wasdifficult to ascertain whether data on the phone was the product of use of the phone,or synchronisation from another device. He disagreed with Mr Son and considered"maturbation" could equally be the product of synchronisation. In other words, it mayhave been entered on another device that has subsequently synchronised.[17] On the first appeal two issues were raised concerning the phone — whetherthe search of the phone complied with the warrant and whether all data retrieved fromthe phone was unreliable because of how it was handled. Within this context,departures from best practice were emphasised. We address only the second of thesegrounds, it being the matter again at issue on the appeal. The new informationavailable does not touch on the warrant, and we do not consider there is any reason tolook again at the Court's initial assessment.[18] The first appeal Court concluded there was an absence of evidence as to whatbest practice was, and so that aspect could not be considered on the appeal.5Concerning reliability generally, the Court noted there was little difference betweenthe experts.6 We cite a paragraph relevant to the present appeal:[50] Ms Gray's submission in respect of the unreliability of the evidenceneeds to be considered in the context of there being little difference in factbetween the two experts on the two matters of real import. The defence expertwas fully briefed and reached the same conclusion as Mr Son that the Phonewas used at 11.16 pm on 30 September 2015 to access Pornhub. He alsoagreed that a search for "maturbation" had taken place at 11.28 that morningbut, unlike Mr Son, was not sure whether that search had been undertaken onthe Phone or on another device in the house.[19] The Court highlighted the limited purpose of the evidence, it not beingthe prosecution case that the YouTube "maturbation" search had produced the videosallegedly shown to the complainant.7 The defence theory was that the complaint wasmalicious and that the complainant had herself searched "maturbation" prior to ringingthe police in order to create a false record and strengthen her complaint.8 She hadaccepted she was a frequent user of YouTube, and said although she did not remembersearching that word, she "could have". This Court considered the context andcompeting positions had been placed squarely before the jury and no issue ofmiscarriage arose.5 At [42]–[43].6 At [45]–[49].7 At [57].8 At [58].Present appeal[20] As noted, evidence emerged subsequent to the appeal that there had beena further interaction involving connection to the internet earlier in time than had beenrealised. This led the original panel to direct the appeal be reopened.9[21] For the purposes of this appeal, further evidence was received fromthe two trial experts, and from a further expert engaged by the defence. The evidenceaddressed the impact of the new disclosure, and also commented on departures frombest practice, that having been an evidential gap on the first appeal.[22] In relation to the earlier connection to the internet, it appears the police officerconnected Mr R's phone to the internet by using a hotspot facility on his own phone.His phone in effect become the Wi-Fi router for Mr R's phone. Mr Son and the newexpert, Dr Allan Watt, agree this would not transfer data from the police officer'sphone to Mr R's. It would trigger Mr R's phone updating itself with any softwareprogrammed to do so. It would also synchronise with any device which was loggedon at the time to Mr R's account.[23] The experts disagreed as to whether this was a departure from best practice,with the two defence experts considering it was. More generally, these two expertsconsider the way in which Mr R's phone was connected to the internet while in policepossession means results from the phone are unreliable. Each new connectioncontains the ability to overwrite data and add new data. The new software added byMr Son also carries that risk. The core criticism is that there was no complete dataacquisition of what was on the phone prior to the police officer connecting it tothe internet and thereby inevitably altering some content. Counsel for the appellantsubmits the evidence is therefore unsafe and its admission has led to a miscarriage ofjustice.10[24] In relation to the 30 September 11.28 am "maturbation" entry, Dr Watt andMr Son agreed that a YouTube search within the YouTube app would not create9 Recall judgment, above n 2.10 Evidence Act 2006, s 30; and Criminal Procedure Act 2011, s 232.a cookie. There is no evidence from either of these experts that any of the subsequentpolice processes could have created the search entry.11[25] Mr Spence is of a different view. At trial he advanced the position that it wasnot possible to know if the search had been done on Mr R's phone, or on anotherdevice linked to the same account and had arrived on Mr R's phone by a process ofsynchronisation. He did not emphasise whether he considered the time and date weresound as his focus was on the possibility of synchronisation.[26] For the present appeal Mr Spence modified his position, positing that the timeand date may be a synchronisation date rather than the search date. He based this onanother entry apparent in the app for later that day. There are in fact two entries, timedat 11.18.50 pm and 11.18.51 pm; that is, one second apart. Mr Spence reasonedno-one could type those disparate entries within one second, so some other processmust have generated the two times so close together. He inferred it wassynchronisation; therefore, all the times in the app history (including the earlier11.28 am entry for "maturbation") might be synchronisation times not search times.[27] The evidence is not convincing. These two times have always been part of therecord; indeed, at trial the jury asked a specific question about them and why therewas only a second between them. Mr Spence at the time explained it by reference tohow time stamps within the phone work, and considered it not anything ofconsequence. We observe Mr Spence's change in position for the appeal is not basedon any further testing nor on any inquiries made of those responsible for the app. It isjust him speculating on a different answer to essentially unchanged information.[28] Although the discovery of an earlier internet connection might on someoccasions be of considerable significance, the context here is different. In particular,it has always been known that:11 Dr Watt did observe that his position was subject to the condition that the time and date on Mr R'sphone was accurately set. Subsequent evidence from Mr Son established this had been tested andit was accurate. Mr Son pointed to the digital record of when he installed the software, noting thatMr R's phone recorded it as occurring at the time it was actually done.(a) Mr R had used the phone for five months since 30 September 2015.That would have involved probably hundreds of connections tothe internet. That alone must render subsequent actions in policepossession of much less significance; and(b) Mr Son's actions had caused a synchronisation event.[29] If none of those known processes, and in particular the numerous interactionswith the internet that would have occurred when Mr R had the phone, could explainan entry for 30 September 2015 at 11.28 am, there is no reason to consider one furtherevent of the same type would. The reality is that if 30 September 2015 at 11.28 am isa randomly generated false time and date, it is a remarkable coincidence.Random processes have somehow attributed a relevant search ("maturbation") toMr R's phone at exactly the same time as the complainant said he was talking to herabout such things. The evidence does not establish this as a credible option.[30] It follows that we do not consider anything has changed since the first appeal,or indeed the trial. The competing views were, and remain, (i) Mr R entered it, or (ii)it was a search done at that time but on another device linked to Mr R's account andsynchronised to his phone. The defence was that it was the latter, the author beingthe complainant who was seeking to create this false record to implicate Mr R andbolster her manufactured story of an incident. There being no relevant change, we areaccordingly of the view that the conclusion of the first appeal on this aspect remainscorrect.[31] Turning to the issue of the general reliability of the phone evidence, we do notconsider there is a case for excluding all material sourced in the phone, regardless ofits particular provenance.12 Even if it is accepted that there were errors in relation tohow the phone was handled, and it is, it is still necessary to link those errors to anyevidence sought to be relied on at trial.[32] Here, the evidence of a Pornhub search, contained as it was in the browserhistory, could be queried in terms of reliability but it is not necessary to consider it12 Evidence Act, s 30.further. Other reliable evidence establishes that Mr R was a person who accessed thatsite. That is the only purpose of the phone data on this point, and so no concern arises.Likewise, for the reasons given we do not consider any departure from best practiceundermines the evidence located in the YouTube app to the extent that it becomesunreliable or inadmissible under the Evidence Act 2006.Result[33] The applications for leave to adduce further evidence are granted.[34] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent