DELIWALA-GEDARA v R [2021] NZHC 570

DELIWALA-GEDARA v R [2021] NZHC 570 [19 March 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-000096[2021] NZHC 570BETWEEN SENITH DEELAKA MUNASINGHEDELIWALA-GEDARAAppellantAND THE QUEENRespondentHearing: 24 February 2021Appearances: A S Olney for AppellantD T E Moore and J Gardener for RespondentJudgment: 19 March 2021JUDGMENT OF GENDALL JThis judgment was delivered by me on 19 March 2021 at 3 p.m. pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] Following a judge-alone trial before Judge Hobbs in the District Court theappellant, Mr Deliwala-Gedara, was found guilty and convicted on 13 charges unders 131A(1) of the Films, Videos, and Publications Classification Act 1993.1 He appealsthose convictions on the basis Judge Hobbs:(a) Incorrectly admitted into evidence a DVD interview given by him.(b) Incorrectly gave leave to the Crown to adduce further evidence afterthe Crown had closed its case.(c) In the absence of direct evidence, improperly drew an inference that MrDeliwala-Gedara had viewed the publications that were the subject ofcharges 5, 6, 9 and 10, and, therefore, had reasonable grounds to believethey were objectionable.Background[2] Mr Deliwala-Gedara arrived in New Zealand from Sri Lanka in 2015.[3] On 27 August 2018 a search warrant was executed, permitting police to searchMr Deliwala-Gedara's residence. The suspected offences recorded in the searchwarrant application included blackmail and offences involving objectionablepublications. Mr Deliwala-Gedara's laptop was seized.[4] Mr Deliwala-Gedara was arrested on the blackmail charge and accompaniedpolice to the police station. At the police station he gave a DVD interview.[5] Subsequent forensic analysis of Mr Deliwala-Gedara's laptop revealedobjectionable publications. Charges were laid in respect of these findings. Theblackmail charge was dismissed.1 R v Deliwala-Gedara [2020] NZDC 21197.[6] Mr Deliwala-Gedara proceeded to judge-alone trial and was found guilty on13 charges relating to the objectionable publications.Principles on appeal[7] This Court may only allow an appeal against conviction if satisfied, in the caseof a judge-alone trial, that "erred in his or her assessment of the evidence to such anextent that a miscarriage of justice has occurred", or that "a miscarriage of justice hasoccurred for any reason."2 A miscarriage of justice means any error, irregularity, oroccurrence in or in relation to the trial that has created a real risk that the outcome ofthe trial was affected, or has resulted in an unfair trial.3[8] The appeal proceeds by way of rehearing and this Court is required to form ofthe facts.4 If this Court reaches a different view on the evidence, it follows the trialjudge necessarily will have erred and the appeal must be allowed.5 The onus is on theappellant to show that an error occurred.Admission into evidence of Mr Deliwala-Gedara's DVD interview[9] On 13 October 2020, Judge Hobbs ruled Mr Deliwala-Gedara's DVDinterview was not improperly obtained and was admissible as evidence.6 His Honourconsidered, if he was wrong in that conclusion, the exclusion of the evidence was notproportionate to the impropriety.7[10] Central to this finding and to this ground of appeal, is the following chronologyof events:(a) On 27 August 2018 police visited and searched Mr Deliwala-Gedara'sresidence. His laptop was seized.2 Criminal Procedure Act 2011, s 232(2)(b).3 Section 232(4).4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].5 At [38].6 R v Deliwala Gedara [2020] NZDC 21565.7 Referring to Evidence Act 2006, s 30(2)(b).(b) Mr Deliwala-Gedara went to the police station where he underwent aDVD interview. He was advised he was under arrest for blackmail. Hewas cautioned and advised of his rights under the New Zealand Bill ofRights Act 1990 (NZBORA).(c) He waived his right to silence and to speak with a lawyer.(d) In the following weeks forensic analysis of the laptop revealed theobjectionable publications. Charges were laid.Appellant's submissions[11] Mr Deliwala-Gedara adopts the position that the DVD interview was obtainedin breach of his rights under s 23(1) NZBORA. It is submitted Mr Deliwala-Gedarawas given his rights in respect of the blackmail charges, but not in respect of theobjectionable publication charges on which he was later charged and tried. On hisbehalf it is suggested Mr Deliwala-Gedara waived his rights to legal advice and tosilence in relation to the blackmail charge only.[12] The District Court Judge said:8[25] With the knowledge that he was being charged with blackmail byelectronic means the defendant would have been aware that his laptop wouldhave been the focus of the inquiry and he chose to freely answer questions inrelation to his laptop and its use.[13] Mr Olney, counsel for Mr Deliwala-Gedara, submits there was no proper basisfor this assessment. Nor, he says, was there a basis to conclude Mr Deliwala-Gedaraunderstood he was in jeopardy of charges of possessing objectionable publications.Critically, Mr Olney maintains, this was because Mr Deliwala-Gedara was notcautioned about these charges.[14] In support of this submission, Mr Olney says the alleged blackmailcommunications took place before Mr Deliwala-Gedara came to New Zealand, and a8 R v Deliwala Gedara, above n 6.number of years before he purchased the laptop. He says Mr Deliwala-Gedara'sknowledge was that the laptop was irrelevant to the blackmail charge.[15] It is apparent here that Police had suspected Mr Deliwala-Gedara ofcommitting objectionable publication offences and obtained the search warrant on thebasis of this suspicion. Mr Olney says, however, that Mr Deliwala-Gedara was notaware of this suspicion, nor was he told that his laptop was being examined forevidence of this offending. In his submission, the basis of the statement given wasnarrowly confined to the blackmail charge. Yet, it does seem Mr Deliwala-Gedarawas asked questions about pornography on his laptop.9[16] It is also contended here that the exclusion of the DVD evidence would beproportionate to the impropriety that has occurred.10 Mr Olney says this assessmenttakes account of Mr Deliwala-Gedara's vulnerability as a relatively young person,recently arrived into New Zealand, and for whom English is not a first language.Respondent's submissions[17] The Crown position here is that the evidence was not improperly obtained andMr Deliwala-Gedara understood the substance and scope of the jeopardy he faced.[18] Mr Moore, counsel for the Crown, refers to portions of evidence provided byDetective Howard, including that he discussed "his right to consult a lawyer; and, whathappens to property seized by police with a search warrant." It is submittedMr Deliwala-Gedara knew of the police interest in his laptop, and knew that it hadbeen seized as part of the search warrant.[19] The Crown says there was no change of tack.11 Rather, the investigation intoMr Deliwala-Gedara's conduct morphed over time. It was only after the laptop wasinspected that the standalone objectionable material was found. Mr Moore saysMr Deliwala-Gedara was clearly on notice as to the nature and type of events at issue.9 These passages are recorded in Judge Hobbs reserve decision, R v Deliwara-Gedara [2020] NZDC21197 at [15] and [16].10 With reference to Evidence Act, s 30(2)(b).11 Distinguishing R v Taylor (No 4) HC Wellington CRI-2004-091-4321, 25 July 2006.[20] The Crown position is essentially that Mr Deliwala-Gedara has conflatedpolice obligations in regard to detaining a suspect, with their obligations whenquestioning, referring to the following sequence of events:(a) Mr Deliwala-Gedara was appropriately detained when arrested at hishouse, there being good cause to suspect that he had committed animprisonable offence.12(b) He was told of the reasons for his arrest, being the allegation ofblackmail.13 He was given his rights.(c) He voluntarily gave a DVD interview. At the outset, he was again givenhis rights in accordance with NZBORA.[21] Mr Moore suggests that, at the time of interviewing a suspect, there is noobligation on the Police to specify every potential charge with which a suspect maybe charged. Often police are still obtaining evidence. He submits the waiver of theright to silence is not tied solely to the offence that has been specified.[22] Even if this Court is to come to the conclusion that the evidence here wasimproperly obtained, Mr Moore maintains it would pass the balancing test ins 30(2)(b) Evidence Act. The intrusion was minor and came from a change incircumstances; the breach was technical; the evidence was important to the Crowncase; and the offence was serious.DiscussionWas the evidence improperly obtained?[23] Section 23(1) NZBORA provides:12 Crimes Act, s 315.13 Section 316(1).23 Rights of persons arrested or detained(1) Everyone who is arrested or who is detained under any enactment—(a) shall be informed at the time of the arrest or detention of thereason for it; and(b) shall have the right to consult and instruct a lawyer withoutdelay and to be informed of that right; and[24] The onus on the police here was to ensure Mr Deliwala-Gedara knew the extentof the jeopardy he faced. He must have sufficient information to be able to make aninformed decision as to whether to speak to counsel. Therefore, he must know the"real substance of the likely allegations" at the point of interview.14 As an accusedperson, Mr Deliwala-Gedara must "know, or at least suspect, the general nature andseriousness of the risk [faced]".15[25] In Lisiate v R the Court of Appeal said:16[15] The requirements for a waiver of the right to silence emerge from anumber of cases.17 Essentially, they are that the suspect's waiverdecision must be voluntary, informed and unequivocal. In the contextof the right to silence, the term "waiver" is used in its common senseto mean relinquish or give up.[26] Mr Deliwala-Gedara was given his rights in accordance with NZBORA priorto the DVD interview. However, it is clear here that at no point did Detective Howardmention that Mr Deliwala-Gedara was in jeopardy of objectionable publicationcharges. The Crown says, at this point, the laptop had not yet been examined and theinformation pertaining to the charges was no yet available. However, I do not considerit follows that the police were not required to caution Mr Deliwala-Gedara on thosecharges.14 R v Z (CA318/07) [2007] NZCA 401 at [20]. Citations omitted.15 R v Taylor (No 4) HC Wellington CRI-2004091-432116 Lisiate v R [2011] NZCA 170.17 R v Ormsby CA493/04, 8 April 2005 at [18] - [20] and R v Rogers [2006] 2 NZLR 156 (CA) at[62].[27] The suspected offences on which the application for the search warrant wasbased were blackmail,18 possession,19 making,20 and distributing an objectionablepublication,21 and accessing a computer without authority.22 The search warrantapplication stated that the Police had reasonable grounds to suspect these offences hadbeen committed.[28] Having reviewed the transcript of the DVD interview, it is apparentMr Deliwala-Gedara freely answered questions in relation to his laptop and his use ofit. However, in my view, there is no basis to conclude Mr Deliwala-Gedara knew orsuspected the general nature and seriousness of the risk that he faced with respect tothe objectionable publications. He was arrested in relation to suspected blackmail andonly cautioned in relation to that charge. By a fine margin, I am satisfied, on thebalance of probabilities, that Mr Deliwala-Gedara was not cognisant of the jeopardyhe faced in relation to the possession of the objectionable publications.If the evidence was improperly obtained, should it be excluded?[29] Having reached the tentative view that the DVD interview was improperlyobtained, I must go on to consider whether the exclusion of the evidence would bedisproportionate to the impropriety. This involves conducting an assessment withreference to the factors in s 30(3) Evidence Act.[30] It is clear the impropriety here was not deliberate, reckless or done in bad faith.In my view, the failure to caution Mr Deliwala-Gedara on the objectionablepublication charges was a technical breach. The police were not on a "fishingexpedition". There is no evidence the police were using the blackmail charge as apretence to uncover further offending. I consider the intrusion was minor.[31] I am satisfied too that the evidence was relevant and probative to the Crowncase. Namely, it established that Mr Deliwala-Gedara obtained the laptop sometime18 Crimes Act, s 237,19 Films, Videos, and Publications Classifications Act, s 131,20 Section 124.21 Section 124,22 Crimes Act, s 252.towards the end of 2016; he owned the laptop; nobody else used it; and that itcontained pornographic videos downloaded from the internet.[32] Given the nature of the content found, the offending was serious. The filesrelated to sexual exploitation of children.[33] In the circumstances, I am satisfied Judge Hobbs did not err in concludingexclusion of the evidence was not proportionate to the impropriety here.Conclusion[34] This ground of appeal accordingly fails.Admission of further Crown evidence after closing[35] Following the parties closing their respective cases, the Crown made anapplication under s 98 Evidence Act to adduce further evidence.23 The evidence inquestion was of two reports completed by the Office of Film & LiteratureClassification (the reports) in relation to the objectionable publications at issue in thetrial. The reports confirmed the classification of the videos as objectionable andcontained detail on the nature and content of the videos.[36] The defence, as I understand it, made a concession that the publications at issuewere objectionable within the meaning of the Films, Videos and ObjectionablePublications Act. This concession was formalised and admitted as evidence pursuantto s 9 Evidence Act.[37] The Crown position was simply that the admission of the reports was purely aformal matter, to confirm that the publications in question were classified asobjectionable. The Crown said the interests of justice required the admission of thereports to provide further detail and explanation of the videos. It was noted, thesematters were not disputed by the defence.23 R v Deliwala Gedara [2020] NZDC 20958.[38] The defence said the Crown knew that proof Mr Deliwala-Gedara knew, or hadreasonable cause to believe, the publications were objectionable may be at issue. Onthis basis in the District Court the defence opposed the admission of the reports. Thiswas on the ground that the reports would, in effect, fill a gap in the Crown evidence.Judge Hobbs rejected this submission.[39] The Judge's view was the "reports do nothing more than confirm what thedefence accept: namely, that the videos in question are objectionable. Therefore, thefurther evidence relates to a purely formal matter." 24 His Honour considered it wasin the interests of justice that, as the fact finder, he have evidence of the basis uponwhich the videos were deemed to be objectionable.Appellant's submissions[40] Mr Deliwala-Gedara's position is that adducing the reports in evidenceaddressed an element of the charge, namely, that Mr Deliwala-Gedara knew, or hadreasonable grounds to believe, that the publications were objectionable.25 Mr Olneysuggested that, without any evidence of what was depicted in the videos, the Crowncould not establish this element. He says the Crown application to adduce the reportswas in response to Judge Hobbs making this observation during the Crown closingsubmissions.[41] It is submitted it was not in the interests of justice to allow the reports to beadduced as evidence. Mr Olney maintains that in the circumstances here, the Crownhad not addressed the knowledge element of the charge prior to closing, and earlierhad advised the defence that no exhibits other than a forensic expert report were reliedupon. He says in these circumstances the defence was entitled to proceed on the basisthat this additional element of the charge would go unaddressed.Respondent's submissions[42] The Crown says Judge Hobbs did not err here in admitting the reports. Theywere a purely formal matter and it was in the interests of justice to admit them.24 At [15].25 Films, Videos, and Publications Classification Act 1993, s 131A.[43] Mr Moore says it was common ground the videos were objectionable, and thatthere was no dispute about what the videos depicted. As such, the nature of the imageshad become a formality and not seriously in dispute.[44] He contends it would simply be a windfall for Mr Deliwala-Gedara to be ablenow to successfully defend the charges on a point that was not disputed throughoutthe trial.DiscussionThe law[45] The Crown has confirmed that following the hearing, the objectionablepublication videos were not played for the District Court. It might be said at one levelthat, therefore, no evidence was adduced to prove the content of the videos. It was notuntil after the closing of the Crown case that, as I have said, it sought to adduce thereports.[46] A party may not adduce evidence after the closing of the party's case, exceptwith permission of the Judge. Relevantly, s 98 Evidence Act provides:98 Further evidence after closure of case(1) In any proceeding, a party may not offer further evidence after closingthat party's case, except with the permission of the Judge.(3) In a criminal proceeding, the Judge may grant permission to theprosecution under subsection (1) if—(a) the further evidence relates to a purely formal matter; or(b) the further evidence relates to a matter arising out of theconduct of the defence, the relevance of which could notreasonably have been foreseen; or(c) the further evidence was not available or admissible before theprosecution's case was closed; or(d) for any other reason the interests of justice require the furtherevidence to be admitted.(4) In a criminal proceeding, the Judge may grant permission to adefendant under subsection (1) if the interests of justice require thefurther evidence to be admitted.(5) The Judge may grant permission under subsection (1),—(b) in any other proceeding, at any time until judgment isdelivered.[47] Here, the application to adduce the reports was made following closingaddresses by both parties, but before the reserved decision was delivered.26Accordingly, s 98(5)(b) gave the District Court Judge jurisdiction to allow theevidence to be admitted, if satisfied of the other elements under the section.[48] The term "purely formal" in s 98(3)(a) is not defined in the Act. In Nathan vPolice Cull J noted this s 98(3)(a) was a codification of recognised categories ofexception in case law prior to the enactment of the Evidence Act.27 Her Honourreferred to the Court of Appeal decision in R v Timutimu, where the Court said:28 the Court has an inherent jurisdiction to allow the Crown to call furtherevidence at a later stage. The discretion is to be used sparingly and in such away as to strike the appropriate balance of justice between the Crown and thedefence. The two recognised categories of exception are, first, situationsinvolving purely formal issues and, second, where issues have arisenunforeseeably or ex improviso. The discretion will be exercised rarely outsidethese two exceptions: R v Francis (1990) 91 Cr App R 271 at 275-276[49] In my view, there is a reasonable argument in all the circumstances here thatthe reports are a purely formal matter. Had the reports simply stated the publicationswere objectionable, I consider this would unequivocally have supported the view thatthey were purely formal. That classification clearly was not in dispute. Here, thereports did go on to contain some description of the content of the videos. In my viewoverall however, the Judge did not err in finding the reports could be largely seen aspurely formal here.26 R v Deliwala Gedara, above n XX, at [1].27 Nathan v Police [2020] NZHC 3452 at [36].28 R v Timutimu CA23/6/06, 30 November 2006 at [12].[50] And, in any event, if I may be wrong on this conclusion, there is a residualdiscretion to admit evidence if it is in the interests of justice.29 This discretion mustbe exercised sparingly outside of the s 98(3) exceptions.30 Prejudice to the defence,31and relevance of the evidence to fundamental issues are relevant considerations.32[51] In Nathan v Police Cull J referred, however, to the Court of Appeal decision inS v R,33 saying:34 the Court of Appeal found that where the failure to call the evidence earlieror the reason that the prosecution now needs to call further evidence is at thehands of the prosecution itself, as it was in that case, it may not be in theinterests of justice to allow the evidence to be adduced[52] In the present case Mr Moore contends, as I note above, that notwithstandingcomments such as those of the Court of Appeal outlined at [51], it would be a windfallhere for Mr Deliwala-Gedara to be able to successfully defend the charges on a pointthat was not disputed throughout his trial, namely that the videos were objectionable.[53] In response, Mr Olney suggests that the purpose of admitting the reports wasnot to satisfy an ancillary formal requirement,35 but it was to establish a substantiveelement of the offence. Addressing that aspect, I turn now to those elements of theobjectionable publication charges. These require specifically the Crown here mustestablish:(a) Mr Deliwala-Gedara was in possession of the publications in question;and(b) the publications were in his possession without lawful authority orexcuse; and29 Evidence Act, s 98(4). See Pepene v R [2011] NZCA 497 at [51].30 R v Timutimu CA236/06, 30 November 2006 at [12] citing R v Francis (1990) 91 Cr App R 271at 275–276.31 Pepene v R, above n 31, at [55];32 At [54].33 S (CA481/2018) v R [2019] NZCA 169.34 Nathan v Police, above n 27, at [46].35 Pursuant to Evidence Act, s 98(3)(a).(c) he knew or had reasonable cause to believe the publications wereobjectionable.[54] There is no issue with requirements (a) and (b) above. Judge Hobbs, in hisreserved decision, correctly noted too that it is the Crown who must prove theknowledge element of the charge.36 His Honour then considered the substantivedescriptions of the videos relating to the nine charges for which there was evidencebefore him that the files had been opened.37 Judge Hobbs said:38[27] Whether the defendant had reasonable cause to believe the video filesin question were objectionable in that they promoted or supported theexploitation of children or young persons for sexual purposes involves anobjective test. Having considered what is depicted in each of these videos I amin no doubt that the defendant had reasonable cause to believe that each of thenine videos he viewed was objectionable bearing in mind they depicted theobvious exploitation of children for sexual purposes.(emphasis added)[55] As I understand the position, Judge Hobbs did not himself view the videos.Upon reflecting on his Honour's decision, it appears instead he relied principally uponother matters which included in part the substantive content of the reports to informthe objective test of whether Mr Deliwala-Gedara had reasonable cause to believe thevideos were objectionable.[56] It is true, as I understand it here, that the reports were available to the Crownin the District Court prior to it closing its case against Mr Deliwala-Gedara. It did notseek to admit them. Arguably, this was a defect which the Crown sought to remedyfollowing closing of the cases.[57] In my view, however, at a general level and adopting the Court's residualdiscretion, it was in the overall interests of justice to adduce this evidence after theclosing of the case. The Crown, it is accepted, could have produced the reports priorto closing. Importantly, however, I accept from the parties that they all accepted, first,that the videos were objectionable and, secondly, and in any event, the content of the36 R v Deliwara-Gedara, above n 1, at [2].37 At [26].38 At [27].videos and what they depicted does not appear to have been in serious dispute. Ofsignificance, too, was the essential defence advanced by Mr Deliwala-Gedara in hisevidence at trial directed only at the argument that it was not him but anotherindividual that downloaded such material, and that he had never seen the materialbefore.[58] And, if I may be wrong on this and it could be established there had been anerror here, the question, on an appeal like this is directed to whether that error createda real risk that the outcome of the trial was affected.39 In my view, overall, JudgeHobbs did not err in admitting the reports following the closing of the party's cases.It must follow, as I see it, that there is no real risk in this case the outcome of the trialwas affected.Conclusion[59] This ground of appeal also fails and is dismissed.Improper inferences[60] Mr Logez, a forensic computer expert, gave evidence that nine of the13 objectionable publications had been viewed. There was no evidence the other fourof the 13 objectionable publications had been viewed.[61] Judge Hobbs was satisfied, on the evidence of Mr Logez, that Mr Deliwala-Gedara was the user of the laptop and "had an active and significant interest in childpornography that extended over a period of time."40 The four unopened videos werein the same folder as the files that had been viewed. In light of these circumstances,the Judge held it was reasonable to infer that Mr Deliwala-Gedara had viewed theremaining four videos.39 Criminal Procedure Act, s 232(4).40 R v Deliwara-Gedara, above n 1, at [31].Appellant's submissions[62] Mr Olney submits it could not be inferred from the evidence, without anyreasonable doubt, that Mr Deliwala-Gedara viewed the four remaining videos. Insupport of this submission he says Mr Logez could not find any evidence that the fileshad been opened or viewed.[63] He argued too that R v Spark, relied on by Judge Hobbs, can be distinguishedfrom the present case.41 There, Mr Spark's computer drive was meticulously organisedand there was extensive evidence of online chats with the complainants' in the photosin issue.42Discussion[64] Mr Olney says the files could have been downloaded inadvertently, due to thedownload mechanism used. In light of the files not having been viewed, Mr Olneysays the Crown failed to prove Mr Deliwala-Gedara had knowledge about the natureof the videos. In response, the Crown position is that the District Court Judge wasentitled to infer from the totality of the evidence that Mr Deliwala-Gedara hadknowledge that the content of those files was objectionable.[65] Mr Deliwala-Gedara was in sole control of the laptop, which was passwordprotected. He admitted downloading porn onto it. Further, the files were in the samefolder as the videos that had been viewed.[66] The Crown notes that files relating to charges 5, 6 and 9 were in the same folderas other objectionable materials for which there was evidence that they had beenrecently viewed. That folder was titled "11yearold_pussy".[67] Mr Moore says the fact the images were of child pornography was evidencethat tended to show Mr Deliwala-Gedara had an interest in this kind of material andwas therefore more likely to have viewed the remaining images, or have been awareof what they were likely to depict. I accept this submission.41 R v Spark [2009] NZCA 345, [2009] 3 NZLR 625.42 At [6]-[9].[68] In my view, considering the totality of the evidence, the District Court Judgedid not err in finding that Mr Deliwala-Gedara either viewed the videos, or hadreasonable cause to believe they were objectionable.Conclusion[69] This ground of appeal is without merit and is also dismissed.Result[70] For all the reasons I have outlined above, I find that no significant errors haveoccurred here, nor that any miscarriage of justice has occurred otherwise because ofany other factors. I conclude too that nothing that has been put before the Court onthis appeal leads to the conclusion that the outcome of Mr Deliwala-Gedara's trial wasdetrimentally affected or that it has resulted in the trial being unfair.[71] This appeal is dismissed....................................................Gendall JSolicitors:Adrian Olney, Barrister, WellingtonLuke Cunningham & Clere, Wellington